In re the Accounting of Herendeen — 235 N.Y. 565

Majority

p. 565

In the Matter of the Accounting of Frederick W. Herendeen, as Executor and Trustee of the Estate of Edward W. Herendeen, Deceased, Respondent. Walter B. Herendeen, Appellant; Walter L. Smith, as Executor of Edward W. Herendeen, Deceased, Respondent.

Headnote

Will — construction — distribution of estate.

Matter of Herendeen, 202 App. Div. 779 , affirmed.

(Argued February 27, 1923;

decided March 13, 1923.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 10, 1922, which unanimously affirmed a decree of the Ontario County Surrogate’s

p. 566

Court directing distribution of the estate of Edward W. Herendeen, deceased. The question presented was whether a one-sixth part of the estate of deceased, which was devised to Edward G. Herendeen, now deceased, should be paid by the trustee to the executor of the last will and testament of Edward G. Herendeen, deceased, to be by him distributed under the will of Edward G. Herendeen, or whether the. said one-sixth part of said estate should be distributed by the trustee under the will of said deceased to the sons of Edward G. Herendeen by virtue of a substitution clause contained in the 5th item of the will in question.

Mordecai Casson, Jr., for appellant.

B. L. Newman and Edward J.. Cook for respondent.

Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin, Crane and Andrews, JJ.