In re Kings County Trust Co.

224 A.D. 735

Opinions

The part of the decree of the Surrogate’s Court of Kings county which directs the Kings County Trust Company, as substituted trustee of the trust created under the last will and testament of Rufus L. Cole, deceased, to pay to the public administrator of Kings county, as administrator of Josephine Sheldon, the sum of $5,000, representing the interest of said Josephine Sheldon in the trust fund, is reversed upon the law and the decree modified accordingly, and also by directing the distribution of said sum of $5,000, and accumulated interest, to Daniel H. Cole and Anna E. Dunn in equal parts, with costs to appellants, payable out of the estate. We are of the opinion that there was no legacy which vested in Josephine Sheldon at the time of the death of the testator. (Warner v. Durant, 76 N. Y. 133, 136; Matter of Baer, 147 id. 348; Matter of Crane, 164 id. 71, 76; Wright v. Wright, 225 id. 329.) The deposit made "with the clerk of the Surrogate’s Court of Kings county in lieu of an undertaking on this appeal, pursuant to section 303 of the Surrogate’s Court Act, will be returned to appellant, Daniel H. Cole. Lazansky, P. J., Kapper, Carswell and Seudder, JJ., concur; Hagarty, J., dissents, with the following memorandum: