In the Matter of the Application of Helen Robinson McGrath for a Construction of the Will of J. Albert Mahlstedt, Deceased, under Section 145 of the Surrogate's Court Act. Helen Robinson McGrath, Appellant, Respondent; Minna M. Mahlstedt and Frederick H. Seacord, as Executors, etc., of J. Albert Mahlstedt, Deceased, Respondents, Appellants; John F. and Robert A. Mahlstedt, and Others, Respondents

In the Matter of the Application of Helen Robinson McGrath for a Construction of the Will of J. Albert Mahlstedt, Deceased, under Section 145 of the Surrogate’s Court Act. Helen Robinson McGrath, Appellant, Respondent; Minna M. Mahlstedt and Frederick H. Seacord, as Executors, etc., of J. Albert Mahlstedt, Deceased, Respondents, Appellants; John F. and Robert A. Mahlstedt, and Others, Respondents. [MAJORITY] Decree of the Surrogate’s Court of Westchester county modified by ehminating the allowance granted to the petitioner and as so modified affirmed, without costs. We are of opinion that while the court had the power to make the allowance under the amendment to section 278 of the Surrogate’s Court Act, it was not justified in this ease for the reasons, first, that the petitioner was not successful, and, second, that the services rendered were not beneficial to the estate. Hagarty, Carswell and Seudder, JJ., concur; Lazansky, P. J., and Davis, J., dissent and vote to affirm without modification. [140 Misc. 245.]