In re the Estate of White — 20 N.Y.2d 791

Majority

p. 791

In theMatter of the Estate of Ernest I. White, Deceased. ohn II., Hughes, as Special Guardian for Peter H. Sims . Others, Infants, Appellant; Jane S. W. Canfield et al., as Executors of Ernest I. White, Deceased, et al., Respondents.

Argued September 21, 1967;

decided September 28, 1967.

p. 792

John Lawton and John H. Hughes, in person, for John H. Hughes, special guardian for Peter H. Sims and others, Infants, appellant.

Charles H. Thompson for Jane S. W. Canfield and others, executors-respondents.

Ralph A. Jones and Neal R. Stamp for Cornell University, respondent.

Memorandum. The order of the Appellate Division should be reversed insofar as it affirmed the Surrogate’s determination that Cornell University was entitled to 10% of the appreciated value of the estate without taking into consideration the diminutive effect of the prior advances made by the executors to Cornell. Cornell University is only entitled to the appreciated value of the estate which is attributable to the undistributed portion of the testator’s general bequest to Cornell. The order should be modified in accordance with this memorandum and, as so modified, affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and the matter remitted to the Surrogate’s Court for further proceedings in accordance with the memorandum herein.

Chief Judge Fuld and Judges Van Voorhis, Scileppi, Bergan, Keating and Breitel concur; Judge Burke dissents and votes to affirm upon the opinion at the Surrogate’s Court.

Ordered accordingly.