Opinion
November 15, 1944.
Present — Cunningham, P.J., Dowling, Harris, McCurn and Larkin, JJ.
Decree so far as appealed from modified on the law by striking therefrom that portion of the third ordering paragraph marked therein "IV" and as so modified affirmed, without costs of this appeal to any party. Memorandum: The instrument of July 5, 1933, signed by Edith Hamlin Covill, is an acknowledgement of an advance of money payable only (unless she otherwise consented) after her death. The provisions of paragraph "THIRD" of the last will and testament of the testator made such advance (unless Mrs. Covill otherwise consented) not only payable after her death but solely from her interest, if any, in the residue of her father's estate. As there was no definite proof of value of the estate before the Surrogate and this is not an accounting proceeding ( Matter of Apple, 141 Misc. 380; Matter of Lord, 155 Misc. 628), that portion of the decree below contained in the third ordering paragraph and marked "IV" was not a necessary or proper provision. All concur. (The portion of the decree appealed from construes a will.)