
    Second Department,
    June, 1928.
    In the Matter of the Petition of Kings County Trust Company to Render and Settle Its Account as Substituted Trustee of the Trust Created under the Last Will of Rufus L. Cole, Late of the County of Kings, Deceased, etc. Daniel H. Cole and Anna E. Dunn, Appellants; Kings County Trust Company, as Substituted Trustee, etc., and Others, Respondents.
   The part of the decree of the Surrogate’s Court of Kings county which directs the Kings County Trust Company, as substituted trustee of the trust created under the last will and testament of Rufus L. Cole, deceased, to pay to the public administrator of Kings county, as administrator of Josephine Sheldon, the sum of $5,000, representing the interest of said Josephine Sheldon in the trust fund, is reversed upon the law and the decree modified accordingly, and also by directing the distribution of said sum of $5,000, and accumulated interest, to Daniel H. Cole and Anna E. Dunn in equal parts, with costs to appellants, payable out of the estate. We are of the opinion that there was no legacy which vested in Josephine Sheldon at the time of the death of the testator. (Warner v. Durant, 76 N. Y. 133, 136; Matter of Baer, 147 id. 348; Matter of Crane, 164 id. 71, 76; Wright v. Wright, 225 id. 329.) The deposit made "with the clerk of the Surrogate’s Court of Kings county in lieu of an undertaking on this appeal, pursuant to section 303 of the Surrogate’s Court Act, will be returned to appellant, Daniel H. Cole. Lazansky, P. J., Kapper, Carswell and Seudder, JJ., concur; Hagarty, J., dissents, with the following memorandum:

Hagarty, J. (dissenting):

I dissent. My conclusion is that a fair construction of this will justified reading into it direct words of gift. Payment, however, was postponed until the death of the life beneficiary, for the convenience of the estate, when the executors were directed to “ divide the remainder ” among named remaindermen “ after paying to my niece Josephine Sheldon the sum of Five thousand dollars.” (Matter of Embree, 9 App. Div. 602; affd., 154 N. Y. 778; United States Trust Co. v. Taylor, 193 App. Div. 153; affd., on opinion of Mr. Justice Greenbaum, 232 N. Y. 609; Matter of Bostwick, 236 id. 242.)  