In re the Will of Morris Roth

Appellants variously appeal from parts of a decree of the Surrogate’s Court of Kings County which construes the “ Fourth ”, “ Fifth ”, “ Sixth ” and “ Eighth ” paragraphs of the will and makes allowances for counsel fees and disbursements. Decree modified on the facts by striking from the fourth ordering paragraph the words and figures “ the sum of $1,000.00 ” and “$1,236.40”, and by substituting respectively therefor the following: “the sum of $2,000.00” and “$2,236.40”. As so modified, the decree is unanimously affirmed, with costs to each party filing a 973 separate brief, payable out of the estate. The will sufficiently expresses the intention of testator to make the bequests set forth in the “ Fourth ” and “ Sixth ” paragraphs of the will, consisting of partnership interest and excess money, or proceeds thereof, in the event of any liquidation and not merely one in accordance with the 1912 partnership agreement. (First Nat. Bank & Trust Co. V. Palmer, 261 N. Y. 13; Matter of Seiner, 261 App. Div. 618, affd. 287 N. Y. 664; Matter of Smith, 263 App. Div. 588, affd. 289 N. Y. 667; Matter of Birdsell, 271 App. Div. 90.) In our opinion the allowance to Pearl Roth, Jacob Steinberger and Benjamin Davidson for their counsel fees is inadequate and should be increased to the sum of $2,000. Present — Hagarty, Acting P. J., Carswell, Johnston, Adel and Nolan, JJ. [183 Mise. 834.]