In re the Accounting of Roth — 271 A.D.2d 934

Majority

p. 934

In the Matter of the Accounting of Peter Roth, as Executor of Gertrude Berg, Deceased, Respondent. Frances Miller et al., Appellants; Frank A. Bellucci, as Special Guardian for John Berg et al., Infants, Respondent.

Appeal from a decree of the Surrogate’s Court of Queens County insofar as it made a claim of the City of New York for maintenance of grandchildren of the decedent a general charge against the decedent’s estate. Decree unanimously affirmed, with costs to respondents filing briefs, payable out of the estate of Gertrude Berg, deceased. Under the facts herein the testatrix was primarily obligated in respect of the claim of the Board of Child Welfare of the City of New York for maintenance furnished to the grandchildren legatees. (Social Welfare Law, § 101.) The legacy of the grandchildren may not be burdened with the claim allowed to the city against the estate of the decedent, since it does not appear that the infants were possessed of money or property “ at the time such relief was granted * * (Social Welfare Law, § 104 [then Public Welfare Law, § 128]; Matter of Beaman, 171 Mise. 578, 581.) Present — Hagarty, Acting P. J., Carswell, Johnston and Nolan, JJ.; Aid-rich, J., deceased.