Henrietta H. M. Fairbrass and Others, Plaintiffs, v. Thomas J. Purdy and John G. Root, as Sole Qualified Executors of and Trustees under the Last Will and Testament of Alfred Charles Fenn. Deceased, Defendants

Henrietta H. M. Fairbrass and Others, Plaintiffs, v. Thomas J. Purdy and John G. Root, as Sole Qualified Executors of and Trustees under the Last Will and Testament of Alfred Charles Fenn. Deceased, Defendants. Judgment ordered for plaintiffs, with costs.— Submission of a controversy upon admitted facts, under the-provisions of article 2, title 2, chapter 11 of the Code of Civil Procedure. [MAJORITY — Per Curiam :] Per Curiam : The gift of tlie residuary estate in the 2d clause of the will is in trust for the payment of legacies, but it is -evident that'the testator intended that the jewelry and wearing apparel should not be included in that trust, or sold by the executors with the other property, the proceeds of which are to be divided among bis brothers and sisters. There is no ultimate gift of the jewelry and wearing apparel to anyone, and the provision of the will with respect to those articles is so vague that it cannot be said that any one has tlie right under the will to claim any of them from the executors—for the distribution is , to be among such of the testator’s friends as the executors in their discretion may see fit to select, and of such articles as such, friends may be desirous of having. The executors hold the articles for the next of kin. There should be judgment for the plaintiffs on the submission, with costs. Present—Van Brunt, P. J., Patterson, O’Brien, Ingraham and McLaughlin, JJ.