
    Seward Baker, as Trustee under the Last Will and Testament of James Ferris, Deceased, Respondent, v. Alexander J. F. Hamilton and Others, Defendants, Impleaded with Minnie E. Gomez, Appellant.
   We think the appellant is eriiitied to the fund in controversy, the distribution being among the persons who answer to the legal definition of next of.kin at the time of the death of the testa tor and not atthetimeof the death of liis daughter. (See Clark v. Cammann, 160 N. Y. 315, 329; Doane v. Mercantile Trust Co., Id. 494, 499.) - The first reporte!' the referee should be confirmed and the -judgment modified by providing that the fund in controversy, namely, an undivided one-forty-second part of the entire fund, be paid to the appellant instead of to the respondent, Maude Beekman. and as modified affirmed, with costs to the the said respondent. Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ., concurred.  