In re the Accounting of Harley ( 1948 )

Decree of the Surrogate’s Court, Queens County, settling the final account of executors, so far as appealed from, reversed on the law and the facts, with costs to' appellants, payable out of the estate, and the matter remitted to the Surrogate’s Court with directions to enter a decree in accordance herewith. It is our opinion that the intent of the testatrix was to divide her net estate into three equal parts, and to create a trust for life for the respondent in one of those parts, with the right of election to respondent to take from that one third a sum not to exceed $5,000. Upon exercise of that elective right by respondent, payment to him was limited to the one third of the net estate so directed to be set aside in trust for him. The second objection to the account of the executors filed by the respondent is overruled. Lewis, P. J., Johnston, Adel, Sneed and Wenzel, JJ., concur.