Opinion
January 30, 1939.
Present — Lazansky, P.J., Carswell, Johnston, Adel and Close, JJ. [ 166 Misc. 621.]
In an accounting proceeding in the Surrogate's Court, Westchester county, the appellants, general legatees, object to the executors' account as filed. The estate did not yield enough to satisfy the widow's elective share and to pay all the bequests made in the will. The executors, after paying the widow's share, paid the sum remaining toward satisfaction of a specific legacy. The appellants, general legatees, object and contend that because of the inadequacy of the estate to meet the bequests made in the will, the specific legacy should abate pro rata with the general legacies. The surrogate found that the testator's primary intention was to provide an income for the specific legatee, overruled appellants' objection, and allowed the account as filed. Decree, in so far as appeal is taken, unanimously affirmed, with costs to all respondents filing briefs, payable out of the estate. No opinion.