Brown v. Popp — 244 N.Y. 519

Majority

p. 519

Frank B. Brown et al., as Trustees under the Will of Andrew B. Brown, Deceased, et al., Respondents, v. Theodore L. Popp et al., as Executors of Edward Kener, Jr., Trustee under the Will of Andrew B. Brown, Deceased, Respondents, and Duncan Edwards, as Executor of Harriet M. S. Brown, Deceased, Appellant.

Headnote

Will — trust — construction of will providing for annuity to widow and giving residuary estate to brother •— release of residue to brother upon setting aside sum sufficient to produce annuity.

Brown v. Kener, 215 App. Div. 794 , affirmed.

(Argued November 16, 1926;

decided December 3, 1926.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 30, 1925, affirming a judgment construing the will of Andrew B. Brown, deceased, entered upon a decision of the court at a Trial Term without a jury. The will provided among other things for the payment of an annuity to the widow of testator annually during her life and gave the residue of his estate to his brother. The question was whether upon the trustees setting aside a sum sufficient to produce such annuity the balance of the estate might be turned over to the residuary legatee.

p. 520

Edward W. Hamilton and Duncan Edwards for appellant.

S. Wallace Dempsey and Glen R. Bedenkapp for plaintiffs, respondents.

Wilber E. Houpt for defendants, respondents.

Judgment affirmed, with costs to respondents payable out of estate; no opinion. •

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