George W. Seaward, as Administrator with the Will Annexed, etc., of William Z. King, Deceased, Appellant, v. Frederick H. Tasker, Respondent

George W. Seaward, as Administrator with the Will Annexed, etc., of William Z. King, Deceased, Appellant, v. Frederick H. Tasker, Respondent. Will—practice — construction — effect of judgment informer action. Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 9th day of September, 1913, which said judgment was resettled by an order theretofore made in the Supreme Court, entered in said clerk’s office on the 9th day of October, 1913, in favor of the defendant and against plaintiff, dismissing the complaint and awarding the defendant the sum of eighty-six dollars and seventy cents costs and disbursements; also from an order entered in said clerk’s office on the 5th day of September, 1913, denying- plaintiff’s motion for a new trial and granting defendant’s motion to set aside the verdict theretofore entered by direction of the court and dismissing the complaint upon the merits. This case was transferred from the Second Department to the Fourth Department of the Appellate Division. (See 166 App. Div. 903.) [MAJORITY — Per Curiam:] Per Curiam: While the record and briefs are voluminous the questions involved in this controversy are few and simple, as we view the case. We need not determine the question of practice, as to whether the trial judge had the right to grant the nonsuit and dismiss the complaint upon the merits, after he had directed a verdict for the plaintiff, because we have reached the conclusion that questions of fact are presented by the evidence which should have been submitted to the jury and require the granting of a new trial. We are of the opinion that whatever of the property is covered by the 3d clause of the will of William Z. King, remaining undisposed of by his widow for her personal use at the time of her death, did not become a part of her estate, but remained a part of the estate of William Z. King, and the legal title thereto is now in the plaintiff. That question, we think, is conclusively adjudicated by the Supreme Court and the Court of Appeals in the action against Davis. (Tuthill v. Davis, 121 App. Div. 290; Seaward v. Davis, 133 id. 191; modified, 198 N. Y. 415; 148 App. Div. 805.) The only comment we deem it necessary to make upon the question as to the qualifications of Mr. Justice Burr to sit and take part in the decisions of the Appellate Division in the Davis action is contained in the memorandum handed down herewith in Bavis v. Seaward (ante, p. 963). We are of the opinion that the directed verdict was properly set aside, because, as we view the evidence, questions of fact were presented which should have been passed upon by the jury, as to whether the moneys which the defendant received were in fact a part of the estate of said William Z. King, remaining unused by the widow at the time of her death, and whether the defendant knew or had information sufficient to put him upon inquiry at the time he received the money to charge him with knowledge of that fact. The judgment and order should, therefore, be reversed and a new trial ordered, with costs to the appellant .to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.