In re the Judicial Settlement of the Account of Empire Trust Co. , 229 A.D. 803 ( 1930 )

Decree of the Surrogate’s Court of the county of Nassau in so far as it affects the share of the infant Georgena K. Garvin in the estate, reversed upon the law and the facts, with costs to said infant, payable by the executors indh idually, and decree directed in favor of the infant, surcharging the executors with the stock held by the estate in the Garvin Machine Company at a valuation of $200 per share for the common stock and $100 per share for the preferred stock, to the extent necessary to pay said infant’s share in the estate as found by the referee, amounting to $22,353, with interest from May 10, 1920. Findings of fact and conclusions of law inconsistent with this decision are reversed and new findings will be made in conformity herewith. In our opinion the executors were negligent in failing to dispose of the stock of the Garvin Machine Company to an extent necessary to pay the infant’s share in the estate. The infant was born subsequently to the making of the will, and was entitled to a one-ninth share of the estate as though the decedent had died intestate. Strict administration was, therefore, required and could not be limited or modified by any provision of the will relating to the retention of the said stock by the executors. Lazansky, P. J., Young, Carswell and Tompkins, JJ., concur; Kapper, J., dissents and votes to affirm. Upon the appeal by the widow, Dorothea M. Garvin, the decree is affirmed, without costs. Kapper, Carswell and Tompkins, JJ., concur; Lazansky, P. J., and Young, J., dissent. Settle order on notice.