In re the Accounting of Chatham Phenix National Bank & Co.

Headnote

Will — trust — residue to be divided amongst heirs'at law according to Statute of Distribution ■ — ■ rights in residue vested in heirs living at date of death.

Matter of Thomas, 218 App. Div. 755 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in'the first judicial department, entered November 5, 1926, which unanimously affirmed a decree of the New York County Surrogate’s Court construing the will of Emile A. Thomas, deceased, and directing distribution of the residuary estate. Testatrix by her will created a trust for the benefit of a brother, nephew and niece and directed that upon the death of the brother and nephew her residuary estate be divided amongst her heirs at law according to the Statute of Distribution. At her death her heirs were three brothers and a nephew; at the time for distribution the niece was the only heir at law. The surrogate held that rights in the residue vested at the time of the death of testatrix and

that it should be divided between the personal representatives of the heirs living at that date.