In re the Judicial Account of Proceedings of Alexander

In a proceeding in the Surrogate’s Court, county of Kings, to construe a will, it appeared that the trust fund was in solido, but one-half of the income was payable to decedent’s sisters-in-law, or the survivor, and the other half to decedent’s niece during their respective lives. Upon the death of the sisters-in-law the entire income was to be paid to the decedent’s niece. In the event the niece predeceased the sisters-in-law the entire income was to be paid to them or the survivor of them. The principal was not to be distributed until the death of all the life tenants, when it was to go to issue of the niece, if any, and, if none, to the decedent’s nephew Milton Wickett and the children of decedent’s nephew Harold G. Wickett, or the survivor of them. The decree severed the illegal provisions from those that were valid, in accordance with the evident dominant purpose of the testatrix. Decree, in so far as appealed from, unanimously affirmed, with costs, payable out of the estate, to all parties appearing and filing briefs except appellant. (Matter of Lyons, 271 N. Y. 204, revg. 245 App. Div. 548; Matter of Brake, 246 id. 758.) Lazansky, P. J., Young, Hagarty and Adel, JJ., concur; Johnston, J., not voting.