Opinion
October, 1906.
We think the appellant is entitled to the fund in controversy, the distribution being among the persons who answer to the legal definition of next of kin at the time of the death of the testator and not at the time of the death of his daughter. (See Clark v. Cammann, 160 N.Y. 315, 329; Doane v. Mercantile Trust Co., Id. 494, 499.) The first report of the referee should be confirmed and the judgment modified by providing that the fund in controversy, namely, an undivided one-forty-second part of the entire fund, be paid to the appellant instead of to the respondent, Maude Beekman, and as modified affirmed, with costs to the appellant against the said respondent. Hirschberg, P.J., Jenks, Hooker, Rich and Miller, JJ., concurred.