Opinion
May, 1934.
Appeal from Surrogate's Court of Albany County.
Decree affirmed, with costs to the respondent against the appellant. Hill, P.J., Rhodes, Bliss and Heffernan, JJ., concur; McNamee, J., dissents, with a memorandum.
I dissent and vote to reverse the decree of the Surrogate's Court, reasoning as follows: that the trust for the benefit of the grandchildren of the testator was in fact set apart in compliance with the direction contained in the will and codicil, as shown by the evidence and as appears by the decree of the surrogate on the accounting; that all the debts, legacies and expenses had been fully paid, and that thereupon the residuary estate, and good title thereto, passed to the residuary legatees; and when the executor delivered the securities in question to his wife by way of gift, she took the absolute title thereto; and no devastavit thereafter committed upon the trust fund by the residuary legatee could divest or impugn the title transferred to the appellant. ( Matter of Smith, 46 App. Div. 318, 321-323; Mills v. Smith, 141 N.Y. 256, 261, 262-264; Lupton v. Lupton, 2 Johns. Ch. 614, 626; Blood v. Kane, 130 N.Y. 514; Matter of Mullon, 145 id. 98, 104; Matter of Wagner, 119 id. 28, 36; Matter of Pruyn, 76 Hun, 128, 130-132.)