Opinion
July, 1931.
Decree of the Surrogate's Court of Queens county, in so far as appealed from, affirmed, with costs to each of the respondents filing briefs, payable out of the estate.
Carswell, Tompkins and Davis, JJ., concur; Lazansky, P.J., concurs to the extent that the accumulated income is to be a part of the residuary estate but dissents upon the ground that the time for the distribution of the residuary estate has not arrived; Hagarty, J., dissents, with the following memorandum:
In view of the accumulation of income in violation of the statute, a construction disposing of the entire income should be adopted if possible. In my opinion such a construction may be placed upon the will. ( Crawford v. Dexter, 178 App. Div. 764; Bloodgood v. Lewis, 209 N.Y. 95.)