Opinion
October 27, 1937.
Present — Hill, P.J., Rhodes, McNamee, Crapser and Heffernan, JJ.
The surviving executor of the estate of Mattie L. Kipp has appealed from a decree of the Surrogate's Court of Columbia county directing him to turn over to the administrator with the will annexed of Harvey Kipp two mortgages, one in the sum of $3,000 and the other in the sum of $2,000. Harvey Kipp died on December 2, 1908, leaving a will by the terms of which he made his wife executrix and trustee thereof and gave to her the income of all his real and personal property for life with the proviso that if in her judgment, she to be the sole judge thereof, the income was not at any time sufficient for her maintenance and support then and in that event she should have the right to invade the principal. The residue of the estate was left to relatives of testator. The surrogate found that the widow purchased the mortgages in question and took title thereto in her individual name with money belonging to the estate of her husband. The mortgages were in the possession of the widow at the time of her death. The evidence sustains the finding. The mortgages pass under the will of the husband. ( Vincent v. Rix, 127 Misc. 639; affd., 221 App. Div. 209; Vincent v. Putnam, 127 Misc. 647; affd., 221 App. Div. 211; both decisions affirmed, 248 N.Y. 76. ) Decree of the surrogate unanimously affirmed, with costs to the respondent payable out of the estate.