The opinion
KALODNER, Chief Judge
(dissenting).
In the instant case, the Superior Court of New Jersey, in Passaic-Clifton National Bank and Trust Company (Super. Ct.N.J.Chan.Div.Essex Co. C-458-55), in an opinion adjudicating the specific issue as to whether the trust here involved was or was not a charitable trust, held:
“The trust created by the aforesaid instrument is charitable”. (Emphasis supplied.)
That adjudication, under our holding in Gallagher v. Smith, 223 F.2d 218 (1955), is conclusive and dispositive of the question here presented as to whether or not the mooted trust is or is not a charitable trust.
In Gallagher, we said at page 223: “Since the decedent was domiciled in Pennsylvania, all the interested parties reside there and the property of the decedent’s estate * * * is located there, the effect of the will and the interest which the plaintiff received under it are to be deter *275 mined by the law of that state.” (emphasis supplied)
And at pages 226-227 we said:
“ * * * the adjudication by the Order of the Orphans’ Court of the plaintiff’s interest in the trust should have been given conclusive effect in the present case and the district court should not have given independent consideration to that question.”
Accordingly, I am of the opinion that Gallagher precluded the district court from giving “independent consideration” to the issue as to whether the mooted trust is “charitable”, in view of the adjudication by the New Jersey Superior Court that it is a “charitable trust”, and that this Court is similarly precluded.
For the reasons stated I would affirm the judgment of the District Court albeit it was premised on other grounds.