Opinion
January 10, 1951.
Appeal from Surrogate's Court of Chemung County.
The will of testatrix was judicially construed in a proceeding had in 1939, and it was there held that the testatrix died intestate as to the residue of the trust estate unless the beneficiary thereof, Jesse B. Sheffer, predeceased her. All interested parties, except Robert Glover, husband of the testatrix, were given notice of this proceeding. No appeal was taken from the decree entered therein, and the construction of intestacy if the beneficiary survived the testatrix became the law of the case. The beneficiary survived the testatrix by several years, as did also the husband, Robert Glover. Hence the residue of the trust estate must pass according to the Statute of Descent and Distribution, and the proceeds thereof should be paid to the husband's estate. The intent of the testatrix is of no avail as to any part of her estate as to which she died intestate. Decree reversed on the law and facts, without costs, and the matter remitted to the Surrogate's Court of Chemung County for the entry of a decree in conformity herewith. Foster, P.J., Heffernan, Brewster, Deyo and Bergan, JJ., concur.