
    Cocks v. Haviland et al.
    
    
      (Supreme Cowrt, General Term, Second Department.
    
    December 10, 1889.)
    ■Appeal—"Waives op Risht.
    The right to appeal from that portion of a surrogate’s decree which reduces an annuity is not lost by a subsequent petition to direct the investment of securities to produce the annuity under the decree, and the acceptance of benefits under a decree entered on such petition, the petitioner’s right to the reduced annuity not being questioned in the latter proceedings.
    Appeal from surrogate’s court, Westchester county.
    Petition by Adelia Cocks against Daniel E. Haviland and others. From the decree rendered petitioner appeals. Respondent’s motion to dismiss the appeal was denied at a special term of the supreme court, and is renewed here. For former report see 1 N. Y. Supp. 904.
    Argued before Barnard, P. J., and Dykman, J.
    
      James A. Hudson, for appellant. Thomas Nelson, for respondents.
   Barnard, P. J.

The facts, so far as pertinent to this motion, are brief.John Cocks died in 1868, and left a will, by which he directed that a sufficient sum be invested in lands in Westchester county, to produce an annuity of $1,000 a year for his widow'. The widow and five children and two sons-in-law of testator, were made executors, and all qualified. The executors did not do their duty, but invested $10,000 at 10 per cent, on lands in Wisconsin, and substantially divided up the rest of the estate among the children. The western investment did not produce the amount of the annuity, and the arrears thereof became large. On the 6th of July, 1887, Haviland, a son-in-law, his wife a child of testator, and Mrs. Varney, another child, paid the widow $1,800, and she gave them a full release from all liability for the annuity. In February, 1882, the surrogate of Westchester county decreed that this release was good, and that the annuity was thereby reduced to the amount of $777.03 per annum. In Hovember, 1886, the widow petitioned the surrogate to direct an investment of securities under the decree. Mrs. Haviland asked for. an accounting. This was ordered, and the parties were brought in for that purpose.. The remnant of the estate was settled, and an investment ordered for the widow on the basis of the reduced annuity, and certain costs were allowed to the widow. This decree.was made in 1887. The widow appealed from a portion of the decree, (1 N.Y. Supp. 904,) and that case is still pending. The widow now appeals from that portion of the decree of 1882 which reduced the annuity. This motion to dismiss the appeal is based upon the fact that the widow has accepted benefits under this decree, and cannot, therefore, appeal from the decree which is adverse to her, and accept the portion in her favor, and receive money under it. The motion to dismiss should be denied. The relief which the widow got under the decree of 1882, by the decree of 1887, was not controverted. The only questions disposed of by the last decree were as to the remnant of the estate, and, while the method of investment was questioned, the widow’s right was not questioned as, to the reduced annuity. Alexander v. Alexander, 104 N. Y. 643, 10 N. E. Rep. 37. The question presented on the appeal from the 1882 decree will not require a return of anything received under the decree of 1887. The motion, therefore, should be denied, with $10 costs.  