In re Eaton

Headnote

Will — bequest to employees who had been employed continuously for five years prior to death of testator — employee does not take who, after nine years’ service resigned, and five years la er was re-employed and so continued until death of testator two years thereafter.

Matter of Willcox, 222 App. Div. 622 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 3, 1928, which reversed a decree of the New York County Surrogate’s Court construing the will of Henry C. Willcox, deceased. Testator, by his will, bequeathed “ the sum of Twenty thousand dollars, to be divided equally among those employees of the American Surety Company of New York, including Miss Lillian Edwards, who have been employed in the Legal Department of the company at its Home office continuously for five years or more prior to my decease, and whose salaries do not exceed the sum of Three Thousand dollars per annum * *

The petitioner was employed continuously in the legal department of the American Surety Company from January 4, 1909, to January 3, 1920, when she resigned. On February 6,1925, she was again employed by the American Surety Company and about a month thereafter was assigned to the legal department where she continued to serve until testator’s death, February 26, 1927. The Appellate Division held that petitioner was not entitled to share under the bequest.