In re the Accounting of Baldwin — 277 A.D.2d 1092

Majority

p. 1092

In the Matter of the Accounting of Willis S. Baldwin et al., as Trustees under the Will of Allen S. Olmsted, Deceased, Respondents. John B. Olmsted et al., Appellants; Enid S. Olmsted et al., Respondents.

Decree, insofar as appealed from, reversed on the law and facts and matter remitted to the Surrogate’s Court for further proceedings in accordance with the memorandum, with costs to all parties filing briefs, payable out of the fund. Memorandum: The language of the testator’s will is unambiguous. We feel that it clearly indicates an intent on the part of the testator that the remainders of the trusts bequeathed under paragraphs sixteenth and nineteenth (b) of the will should pass to his blood relatives rather than to strangers to the blood. It is our conclusion that the adopted children of Allen S. Olmstead, II, testator’s nephew, do not come within- the class of remaindermen designated in said paragraphs as grandchildren or grandnephews and grandnieces. (See Matter of Battell, 286 N. Y. 97 , 102; Matter of Conant, 144 Misc. 743 ; Matter of Leask, 197 N. Y. 193 , 197, and Dwight v. Fancher, 245 N. Y. 70 , 74.) All concur. (Appeal from a portion of a decree which construes a will.) Present — Taylor, P. J., McCurn, Vaughan, Kimball and Piper, JJ.

Cases cited

In re the Accounting of Irving Trust Co. 286 N. Y. 97 N.Y. 1941-07-29 at 102 p. 1092
In re the Estate of Conant 144 Misc. 743 N.Y. Sur. Ct. 1932-09-23 p. 1092
In re the Accounting of Leask 197 N. Y. 193 N.Y. 1910-01-04 at 197 p. 1092