Majority
p. 624Bank of New York and Trust Company, as Executor, etc., of David Gardiner, Deceased, and as Trustee under a Deed of Trust Made by David Gardiner, Deceased, Bearing Date the 23d Day of October, 1924, Respondent, v. Sarah Diodati Gardiner, Appellant, and Robert David Lion Gardiner and Others, Respondents. (Appeal No. 1.)
Judgment affirmed, with costs payable out of the estate, to all parties appearing and filing briefs. No opinion. Lazansky, P. J., Young, Kapper and Tompkins, JJ., concur; Hagarty, J., dissents, with the following memorandum: The deficiency, amounting to $211,308.16, should be charged against the trust fund, and of the deficiency so charged $51,809.33 should be charged against the portion of the trust fund remaining in trust for the nephew and niece and the balance of such deficiency should be charged against the entire fund which passed under the trust agreement, and the judgment appealed from should be reversed to the extent of granting such relief asked for by appellant.