The Farmers' Loan and Trust Company, as Trustee under a Deed of Trust Dated June 10, 1918, Made by Helen C. Bostwick, for the Benefit of Helen C. Bostwick and Remaindermen, Respondent, v. Egerton L. Winthrop, Jr., as Executor, etc., of Evelyn Bostwick Voronoff, Deceased, and Others, Appellants, Impleaded with The Farmers' Loan and Trust Company, as Executor, etc., of Helen C. Bostwick, Deceased, Defendant

The Farmers’ Loan and Trust Company, as Trustee under a Deed of Trust Dated June 10, 1918, Made by Helen C. Bostwick, for the Benefit of Helen C. Bostwick and Remaindermen, Respondent, v. Egerton L. Winthrop, Jr., as Executor, etc., of Evelyn Bostwick Voronoff, Deceased, and Others, Appellants, Impleaded with The Farmers’ Loan and Trust Company, as Executor, etc., of Helen C. Bostwick, Deceased, Defendant. First Department, December 14, 1923. See headnote in Farmers’ Loan & Trust Co. v. Winthrop (ante, p. 356). Appeal by the defendants, Egerton L. Winthrop, Jr., as executor, etc., and others, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on or about the 28th day of August, 1922, upon the report of a referee appointed to hear and determine in an action brought by the plaintiff for the judicial settlement of its account. Winthrop & Stimson [Frederick W. Stelle of counsel; Henry L. Steitz and Arthur E. Pettit with him on the brief], for the appellant Egerton L. Winthrop, Jr., as executor, etc. Charles S. McVeigh of counsel, for the appellant Marion Car-stairs de Fret. Hall Park McCullough, guardian ad litem [John W. Davis of counsel; Edward R. Greene with him on the brief], for the appellants Francis Francis, Jr., and another. Seacard, Ritchie & Young [Albert Ritchie of counsel], for the appellants New Rochelle Trust Company and another, general guardians of Bostwick infants. Lawrence Atterbury, attorney [Charles Green Smith of counsel], for the appellants Dorothy S. Bostwick and another, and guardian ad litem for the appellants Lillian S. Bostwick and others. Geller, Ralston & Blanc [Charles Angulo of counsel], for the respondent. [MAJORITY — McAvoy, J.:] McAvoy, J.: The controversy here is common to that in Farmers’ Loan & trust Co. v. Winthrop (207 App. Div. 356), decided herewith, in so far as it relates to the claim for reimbursement for Federal and State taxes paid by the Farmers’ Loan and Trust Company, as executor, for-the transfer and estate taxes levied upon the properties which passed by the trust; and the rule formulated there applies; and accordingly the judgment appealed from, in so far as it adjudges that the payment of the Federal estate tax on the transfer of the trust property herein by the Farmers’ Loan and Trust Company, as executor of the estate of Helen C. Bostwick, deceased, was proper, should be reversed; it should be adjudged that such executor is entitled to be reimbursed out of the trust fund for the Federal estate tax; and said judgment should in all other respects be affirmed. Clárke, F. J., Dowling, Finch and Martin, JJ., concur. Judgment reversed to the extent indicated in opinion and in other respects affirmed. Settle order on notice.