In re the Accounting of Clarke — 220 N.Y. 660

Majority

p. 660

In the Matter of the Accounting of Frederick J. R. Clarke, as Executor of John J. Linson, Deceased. John J. Linson et al., Appellants; Ernest J. Linson, Respondent.

Headnote

Matter of Clarke, 174 App. Div. 736 , reversed.

(Submitted February 27, 1917;

decided March 13, 1917.)

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 11, 1916, which modified a decree of the Ulster County Surrogate’s Court construing the will of John J. Linson, deceased, and settling the account of his executor. ' Testator by the 2d clause of his will excluded his son Ernest from all participation in his estate. By the 4th clause thereof he instituted a trust for the benefit of his

p. 661

three sons, his daughter-in-law, wife of Ernest, and their son, and further provided that in case either of said three sons should die before the expiration of the trust his share in the income and in the principal when the trust should terminate should be paid to his issue, or in default thereof his share in the income and in the principal should be divided among “ his brothers him surviving and said Raul Linson and the issue of any of his brothers who may have died before him. ” The surrogate held that the words 1 ‘ surviving brothers ” meant only the brothers mentioned in the 4th clause who were beneficiaries under the trust and did not include Ernest, who had been expressly excluded from the provisions of the will by the 2d clause. The Appellate Division held that the words “ surviving brothers ” did include Ernest.

Howard Chipp and Everett Fowler for appellants.

Frank W. Brooks for respondent.

Order of Appellate Division reversed and decree of Surrogate’s Court affirmed, with costs in the Appellate Division and in this court on the dissenting opinion of Cochrane, J., below.

Concur: Hiscock, Oh. J., Chase, Cuddeback, Hogan, Pound, McLaughlin and Andrews, JJ.