Majority
p. 869Douglas Nicholson and Another, as Executors, etc., of Rosa F. Huyler Cooke, Deceased, Appellants, v. William Wilbur J. Cooke and Another, as Committee of Said William Wilbur J. Cooke, an Incompetent, Respondents.
Order, so far as appealed from, denying plaintiffs’ motion for an order striking out the first defense consisting of new matter contained in paragraphs numbered
p. 870
2, 3, 4 and 5 of the answer, unanimously reversed, with twenty dollars costs and disbursements, and the motion granted, upon the ground that, in the absence of special circumstances not set forth in this defense, the provisions of the will alone do not affect the liability of the defendant. Present — Martin, P. J., Townley, Untermyer, Dore and Cohn, JJ.