Majority
p. 1123In re SEEBECK’S ESTATE. In re TIENKEN, Appellant. (Supreme Court, General Term, Second Department. December 12, 1892.)
Headnote
Application by Anna M. Tienken to compel Anna Seebeck, sole surviving executrix and trustee of John H. Seebeck, deceased, to pay over to applicant, individually, or as executrix of Henry M. Tienken, deceased, surplus income which the said Henry M. Tienken would have been entitled to if living.For former appeals, see 17 N. Y. Supp. 676 .
Theo. N. Melvin, for appellant.
William D. Veeder and George F. Martens, for respondents.
John E. Bullwinkel, for executrix.
Robert A. Morrison, special guardian.
The question here sought to be raised as to the construction of the ninteenth clause of will of John H. Seebeck, deceased, as modified by the third clause of the codicil thereto, has been decided by this general term, and must be regarded conclusive until overruled or modified by the court of appeals.
As to the second question, whether the share of the income due Henry M. Tienken at his death shall be charged with its proportionate share of the taxes on the realty, we think the decision of the surrogate is right. See In re Babcock, 115 N. Y. 450 , 22 N. E. Rep. 263 , and cases there cited. Decree affirmed.