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Edith Cotton Fisher v. Walter E. Lister and Others, Defendants Belle Noble, as Treasurer of Amherst Rebecca Lodge No. 401, of Lake George, Warren County, N. Y. (Also Known as Amherst Rebecca Lodge No. 401, I. O. O. F., of Lake George, Warren County, N. Y.), and Another
Per Curiam. The court is of the opinion that under the authority of Matter of Durand (194 N. Y. 477, 488), and Matter of Seymour (239 id. 259), the validity of the testamentary provision for the appellant corporation must be determined as of the date of the death of the testatrix and not as of the date of the death of the life tenant, and that, so determined, section 17 of the Decedent Estate Law was not violated.
For the reasons stated by the trial justice we think the appellant corporation cannot take what was intended by the testatrix for the Amherst Rebecca Lodge, No. 401, of Lake George. (See 130 Misc. 1.) Cochrane, P. J., Van Kirk, Hinman, Davis and Whitmyer, JJ., concur.
Interlocutory judgment modified so as to provide that the appellant, Grand Lodge of the Independent Order of Odd Fellows, is entitled to an undivided one-half of the real estate in question, and that the plaintiff and the defendant Lister are each entitled to an undivided one-fourth thereof, and as so modified affirmed, with costs of this appeal to each party filing briefs herein payable out of the proceeds of the sale of said real estate.