Opinion
March 21, 1949.
Present — Carswell, Acting P.J., Johnston, Adel, Sneed and MacCrate, JJ.
Resettled decree of the Surrogate's Court of Putnam County, dated November 3, 1947, construing the residuary clause of the will of testator and directing trial by jury of the amount of charge thereupon for the support of testator's son, insofar as appealed from, unanimously affirmed, without costs. Appeals from the decree of the Surrogate's Court of Putnam County, dated August 22, 1947, superseded by the resettled decree above mentioned, dismissed, without costs. In our opinion the resettled decree construing the "Fifth" paragraph of the will as vesting the residuary estate in James S. Smith, subject to and charged with the payment of the reasonable, proper and comfortable support, maintenance and care of testator's son, Fenton G. Smith, is in conformity with the intent of the testator as expressed in the will ( Matter of Forde, 286 N.Y. 125, 128; Meeks v. Meeks, 161 N.Y. 66, 70; Fell v. McCready, 236 App. Div. 390, 395, affd. 263 N.Y. 602; Matter of Nelson, 268 N.Y. 255, 258); and that the amount of such cost of support so to be charged may properly be determined by trial before the Surrogate, as directed by the decree. (Surrogate's Ct. Act, § 40; Matter of Buehler, 186 Misc. 306, 309, affd. 272 App. Div. 757, same case 274 App. Div. 770.)