Thus apparel of mourning, not requisite as raiment, but commanded by custom and respect, has been allowed (3 Dem. 524); so, too, have been music and flowers. Matter of Ogden, 41 Misc. 158. Indeed, it is of judicial learning in this State that "'Funeral' embraces not only the solemnization of interment but the ceremonies and accompaniments attending; * * * ceremonies prompted by affection and * * * determined by the religious faith and sentiment of the friends of the deceased * * * varying from the simple bier to the imposing catafalque, from the informal liturgical service or scriptural reading for the humble to the elaborate orisons funebres attending the obsequies of the renowned." Deferring to expositions of such authority the judgment should be reversed and the demurrer overruled, with leave to the defendants to answer upon the payment of the costs of this appeal and of the court below.
It was the duty of the executor to use every reasonable effort to establish the will of the testator and the services performed by him as outlined in his verified claim and by his testimony appear to have been reasonable and proper and the court believes are properly allowable to him upon this settlement of his account. ( Matter of Fraser, 165 A.D. 441; Douglas v. Yost, 64 Hun, 155; Matter of Ogden, 41 Misc. 158.) The claim of the executor for such service upon the probate of the will is allowed at $775.
He holds not in his own right, but as a trustee, for the benefit (1) of the creditors of the testator, and (2) of those entitled to distribution under the will, or if not all bequeathed, under the Statute of Distributions," and in Wager v. Wager ( 89 N.Y. 161) the court said that "So far as the property is effectually disposed of by the will, the executor holds it in trust for the legatees or beneficiaries, and, according to the law of this country, if there is any part of such property or any interest therein not effectually disposed of by the will, he holds it in trust for those who are entitled to it under the Statute of Distributions." (Citing Bowers v. Smith, 10 Paige, 193; 1 Williams Executors, 294; 2 Story's Eq. Juris. ยง 1208; Hays v. Jackson, 6 Mass. 153.) (See, also, Mott v. Ackerman, 92 N.Y. 539, 553; Jones v. Kelly, 63 A.D. 614; affd., 170 N.Y. 401; Matter of Maccafil, 127 A.D. 21, 25; Matter of Ogden, 41 Misc. 158, 165.) The claim, however, that she is trustee for the next of kin, and her contention upon the hearing, are in direct conflict with the claim of the executor and of the special guardian for the Carroll infants.