In re the Estate of Fox , 215 N.Y.S. 648 ( 1926 )

O’Brien, S.

The executor’s discretion to be exercised in carrying out the directions of paragraph “ second ” of the will was not controlled or limited by the language used in said paragraph or in the rest of the will. Failure to comply precisely and literally with the directions set forth therein by omitting the stones deemed to be “ imitation ” or damaged or of small value from the ostensorium is not such a variance from the directions of testatrix as will warrant the court’s disapproval of the account. Let the stones omitted and the ostensorium be delivered to the beneficiary and let the statement in “ Schedule E-l ” alleging the tender and refusal of the bequest be stricken from said account. Submit decree on notice.