Opinion
March 21, 1947.
Present — Martin, P.J., Glennon, Dore, Callahan and Peck, JJ.; Dore, J., dissents and votes to affirm. Settle order on notice.
Decree reversed on the authority of Matter of Title Guarantee Trust Co. ( 195 N.Y. 339) insofar as it adjudges that the proper construction and effect of the will and codicils of the decedent are that the trust for Clara Van Schaick Helmrath, decedent's sister, continued for the benefit of Mary Louise Van Schaick Thacher and Ethel Genung Van Schaick, nieces of the decedent, and that said gift in trust for said nieces is on a parity with the general legacy to Dorothy Leonard Smith, and directs said Dorothy Leonard Smith to pay to the executors herein the sum of $1,631.85 and directs distribution accordingly. The trust of the residue of the decedent's estate for the benefit of the nieces is a separate and different trust from that created by general legacy for the benefit of decedent's sister. Upon the falling in of the sister's trust, the codicil directed that the principal and accumulated income of that trust should form part of the residuary estate. The fact that the residuary estate was also placed in trust should not alter the applicability of the decision in Matter of Title Guarantee Trust Co. ( supra). The general legatee Smith is entitled to her legacy in full. The matter is remitted to the Surrogate of the County of New York for further action in accordance with this memorandum. Costs are awarded to the appellants payable out of the estate.