
    In the Matter of the Accounting of Catherine O. Metzger et al., as Executors of Reba H. Owen, Deceased.
    Surrogate’s Court, New York County,
    June 15, 1948.
    
      Richard Steel for executors, petitioners.
    
      Francis X. McGowan, special guardian for Robert O. Metzger, an infant, and for unborn issue of Robert O. Metzger and another, respondents.
   Collins, S.

In this accounting proceeding the executors request a construction of the will in order to determine whether the entire burden of the estate taxes is to be borne by the residuary estate or whether the beneficiaries of property passing outside of the will are to bear a proportionate share of the tax. The pertinent text of the will reads: “ I direct that all estate taxes be paid out of the residuary estate and there shall be no apportionment thereof among any of the beneficiaries entitled to share hereunder.”

In addition to the property disposed of by the will there were included among the taxable assets of decedent certain insurance benefits and United States Savings Bonds issued in the joint names of the decedent and her daughter.

The court holds that the text of the will does not exonerate the recipients of funds outside the true estate from contributing proportionately to the estate tax (Matter of Ryan, 178 Misc. 1007, affd. 265 App. Div. 1051, motion for leave to appeal denied 290 N. Y. 933; Matter of Rogers, 249 App. Div. 238, motion for leave to appeal denied 273 N. Y. 680; Matter of Kalik, 179 Misc. 872; Matter of Corlies, 174 Misc. 459; Matter of Mills, 189 Misc. 136, affd. 272 App. Div. 229, affd. 297 N. Y. 1012).

The fee of the attorney-executor has been fixed and the amount allowed has been indicated upon his affidavit of services.

Submit decree on notice construing the will and settling the account.  