In re the Estate of Baker

Decree reversed on the facts, with costs to the appellant payable out of the estate, and matter remitted to the Surrogate’s Court for further proceedings in accordance with the memorandum. Certain finding of fact disapproved and reversed and new finding made. Memorandum: Upon a former appeal in this proceeding this court reversed a decree of the surrogate of Allegany county adjudging that the decedent was a resident of Allegany county at the time of his death, and remitted the matter to the Surrogate’s Court for a rehearing. (Matter of Baker, 252 App. Div. 38.) Upon the rehearing the surrogate determined that decedent, at the time of his death, was a resident of Allegany county. Upon this appeal from the decree thereon entered our examination of the record leads us to the conclusion that the overweight of the evidence establishes that decedent was a resident of and domiciled in Erie county, State of New York, at the time of his demise on April 3, 1936, and was not then a resident of Allegany county. All concur, except Sears, P. J., and Crosby, J., who dissent and vote for affirmance. (The decree *937adjudges decedent to have been a resident of Allegany county at the time of his death, in a proceeding to revoke letters of administration.) Present — Sears, P. J., Crosby, Lewis, Cunningham and Taylor, JJ.