Opinion
March 29, 1949.
Appeal from New York County Surrogate's Court.
Decree affirmed, with costs.
We dissent and vote to reverse the decree appealed from so as to construe subdivision "c" of paragraph "Fourteenth" of the will of Jennie Orr, deceased, as giving the remainder of the trust therein created to the issue of the lifetime income beneficiary, Robert M. Dunham, such gift to take effect as of the date of the death of the testator, not to be subject to being divested by the death of such issue prior to the death of Robert M. Dunham; and sustaining the right of appellants to receive the remainder under their assignments from Donald O. Dunham ( Matter of McParlan, 169 Misc. 1028; Matter of Embree, 9 App. Div. 602, affd. 154 N.Y. 778; Doe ex dem. Barnes v. Provoost, 4 Johns. 61; Moore v. Lyons, 25 Wend. 119, 144; Livingston v. Greene, 52 N.Y. 118, 123; Nelson v. Russell, 135 N.Y. 137, 140-141; Connelly v. O'Brien, 166 N.Y. 406, 408; Matter of Bump, 234 N.Y. 60, 65; Matter of Watson, 262 N.Y. 284; 7 Heaton on Surrogates' Courts, §§ 571, 572; 69 C.J., Wills, § 1730, p. 641).
Peck, P.J., Glennon and Shientag, JJ., concur in decision; Callahan and Van Voorhis, JJ., dissent in opinion.
Decree affirmed, with costs. No opinion. [ 192 Misc. 608.]