In the Matter of the Petition of Richard D. Sutter, as Executor of the Last Will and Testament of Daniel Sutter, Deceased, for a Determination of the Construction and Effect of the Said Last Will and Testament. Henry Sutter and Others, Appellants; Richard D. Sutter, as Executor, etc., and Others, Respondents

In the Matter of the Petition of Richard D. Sutter, as Executor of the Last Will and Testament of Daniel Sutter, Deceased, for a Determination of the Construction and Effect of the Said Last Will and Testament. Henry Sutter and Others, Appellants; Richard D. Sutter, as Executor, etc., and Others, Respondents. [MAJORITY] Decree of the Surrogate’s Court of Nassau county determining that the appellants are not entitled to share in the residuary estate of the testator unanimously affirmed, with costs against the appellants. In our opinion only the children of the testator who were living at the time of the execution of the will are entitled to the residuary estate under the second paragraph of said will. Present — Lazansky, P. J., Hagarty, Tompkins, Davis and Johnston, JJ.