In re the Accounting of Barkley — 242 N.Y. 528

Majority

p. 528

In the Matter of the Accounting of Ralph E. Barkley, as Executor of the Estate of Abbie M. F. Andrews, Deceased. May M. Johnson, Appellant; Bessie F. Sturtevant et al., Respondents.

Headnote

Will — residuary estate to “ nephews and nieces ”— grandniece, daughter of deceased niece, not included — award of costs, not appealed from, improperly stricken out by Appellate Division.

Matter of Andrews {Barkley), 213 App. Div. 479 , modified.

(Argued January 21, 1926;

decided February 24, 1926.)

Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered

p. 529

July 31, 1925, modifying and affirming as modified a decree of the Washington County Surrogate’s Court construing the will of Abbie M. F. Andrews, deceased. The fourth clause of said will read as follows: “ With the exception of my nephew George U. Gates, I give and bequeath all the rest, residue and remainder of all my property and estate to such of my nephews and nieces as survive me, to be divided equally between them share and share alike.” The surrogate held that a grandniece, daughter of a deceased niece, was included as one of the class constituting the residuary legatees. The Appellate Division held that only actual “nephews” and “ nieces, ” in the ordinary meaning of the terms, were included, and modified the decree by striking out the name of the grandniece as a residuary legatee as well as her award of costs, although no appeal had been taken from such award.

Harry Cook and Newton B. Van Derzee for appellant.

J. B. McCormick for Ralph E. Barkley, as executor.

Ernest H. Wills and John B. Watts for respondents.

Order of Appellate Division modified by restoring allowance of costs to May M. Johnson and as so modified affirmed, without costs; no opinion.

Concur: His cook, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.