In re the Accounting of the Farmers' Loan & Trust Co.

Majority

p. 596

In the Matter of the Accounting of The Farmers’ Loan and Trust Company, as Successor Trustee under the Will of James H. Banker, Deceased. Sarah H. Kent et al., as Executrices of Ellen J. Banker, Deceased, Appellants; Sophia H. B. White, as Administratrix of the Estate of Edward Banker, Deceased, Respondent.

Headnote

Will — trust — remainder to issue of niece or in default thereof to brother — death of brother before that of life tenant and of niece, without issue subsequent thereto -r- administratrix of brother takes remainder.

Matter of Banker, 223 App. Div. 496 , affirmed.

(Argued May 29, 1928;

decided June 12, 1928.)

Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 20, 1928, which reversed a decree of the Westchester County Surrogate’s Court construing the will of James H. Banker, deceased. Testator by his will created a trust for the use of his wife and niece with remainder to issue of the niece or in default thereof to his brother. The brother predeceased the widow and niece, the latter surviving the widow but dying without issue or descendants thereof. The Appellate Division held that the administratrix of the brother was entitled to the remainder.

Edwin W. Cooney and Joseph Trachtman for appellants.

Henry S. Miller for respondent.

p. 597

Order affirmed, with costs payable out of the estate; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.