In re Guilfoyle

¶1Decree of the Surrogate’s Court of RoeHand County dismissing the petition for an accounting on the ground that the petitioner had no interest in the estate, reversed on the law, with costs to all parties filing briefs, payable out of the estate, the application granted and the matter remitted to the Surrogate’s Court for the entry of a decree accordingly. We are of opinion that Charles A. Sarvent, Jr., had a vested interest in the remainder of the corpus of the trust created by the testator Garret Sarvent, which was devised to the petitioner, the wife of Charles A. Sarvent, Jr. (Real Prop. Law, § 40; Matter of Watson, 262 N. Y. 284; Matter of Montgomery, 258 App. Div. 64; affd., 282 N. Y. 713.) Lazansky, P. J., Hagarty, Carswell and Close, JJ., concur; Adel, J. (dissenting): I dissent and vote to affirm the decree. In my opinion the “ divide and pay over ” rule is applicable. (Matter of Pulis, 220 N. Y. 196; Trask v. LaFarge, 249 App. Div. 790.)