Majority
Decree of the Surrogate’s Court of Kings county as to the two Westinghouse bonds affirmed. We are of opinion that the treasury notes now held by the respondent were purchased with the proceeds of the securities withdrawn by respondent from the testator’s custody account November 21, 1921, and that the learned surrogate erred in declining jurisdiction. He should have tried and determined the question as to whether the respondent had established a valid gift inter vivos of the securities in question. As to this issue the proceeding is remitted to the Surrogate’s Court of Kings county to hear, try and determine the question as to whether there was a valid gift of the securities, without costs of this appeal to either party. Kelly, P. J., Rich, Jaycox, Kelby and Young, JJ., concur.