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In the Matter of the Accounting of James N. Gehrig, as Surviving and Trustee under the Will of Valentine Ackley, Henry E. Ackley, Individually and as of the Will of Sarah K. Ackley, Appellant Elaine A. McNally
In a proceeding for the settlement of the account of an executor and trustee and for construction of a will, decree of the Surrogate’s Court, Nassau County, insofar as appealed from, reversed on the law, with costs to all parties filing briefs, payable out of the estate, and it is adjudged that under the third paragraph of the will, one half of the remainder, on the death of the life tenant, vested in the testator’s son Howard, who had survived the testator.
The matter is remitted to the Surrogate’s Court for the making of another decree distributing the assets of the estate in accordance with the foregoing determination. The direction in the will that upon the death of the life beneficiary the principal 703 of the trust be paid in equal shares to the children and the issue of any deceased child, served to vest in each of the two children of the testator a vested share of the remainder upon their surviving the testator.
(Matter of Montgomery, 258 App. Div. 64, affd. 282 N. Y. 713; Connelly V. O’Brien, 166 N. Y. 406; Matter of Watson, 262 N. Y. 284, 298, 299; Vanderzee V. Blingerland, 103 N. Y. 47, 53, 54; Nelson v. Russell, 135 N. Y. 137.) Carswell, Acting P. J., Johnston, Sneed, Wenzel and MaeCrate, JJ., concur.