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In the Matter of the Judicial Settlement of the Account of Proceedings of Frank R. Abbey, as Surviving of and Trustee under the Last Will and Testament and Codicil Annexed Thereto of Sylvanus T. White, Deceased Frances Louise Abbey, Appellant Frank R. Abbey, as Surviving and Trustee, and Others
Jenks, P. J.:
We think that the rule of Kalish v. Kalish (166 N. Y. 368, 375) was applied properly to this case. In view of the appellant’s contention that the rule was not to be extended to the case at bar, we cite Underwood v. Curtis (127 N. Y. 523); Harrison v. Harrison (36 id. 548); Matter of Hitchcock (176 App. Div. 326); Leavitt v. Wolcott (65 How. Pr. 51, affg. Van Vorst, J., at Special Term).
The general scheme of the will contemplated a trust for the lives of the testator’s wife and daughter that was subsequently extended by the codicil so as to include the life of the son-in-law if he survived his wife. The excision by the court of the provision for the son-in-law left intact the original scheme, within the language of the Court of
[397] Appeals in the Underwood case (supra): “ This can be done without in any manner interfering with the general scheme adopted by the testator for the disposition of his property. On the contrary, it is in furtherance of his wish to as great an extent as the courts may be permitted to go.” (See, too, Van Schuyver v. Mulford, 59 N. Y. 426; approved in Tilden v. Green, 130 id. 50.)
The opinion of Surrogate Ketcham makes any further discussion unnecessary. We are in accord with the view taken by him (98 Misc. Rep. 506).
The decree of the Surrogate’s Court of Kings county, in so far as appealed from, is affirmed, with costs, and an allowance to the special guardian, to be paid out of the estate.
Thomas, Rich and Blackmar, JJ., concurred.
Decree of the Surrogate’s Court of Kings county, in so far as appealed from, affirmed, with costs, and an allowance to the special guardian, to be paid out of the estate. Order to be settled before the presiding justice.