
    In the Matter of the Judicial Settlement of the Accounts of William C. Van Dorn, as Executor, etc., of Alice E. Wilson, Deceased.
   This is an appeal from a decree of the Surrogate’s Court of Saratoga county on an accounting construing clause 9th of the will of decedent. Clause 9th reads as follows: “ I give and bequeath to [The Board] sum of $2,000 as an annuity, the income from the same to be paid to my brother Albert C. Wilson during his lifetime.” The Board claims that it was an absolute gift subject to the payment of an annuity without the power of election and the respondent claims that it was the usual gift of an annuity subject to election to take the corpus in place of the annuity. The will in question was made on November 10, 1934, the day before the death of the deceased. There is no dispute as to the facts in this record. The sole issue on this appeal is the proper judicial constmetion upon this record of Clause 9th of the will. The right of the beneficiary to elect to receive a capital sum in lieu of an annuity exists only where the will directs the purchase of an annuity or where an annuity is created without a valid gift over of the remainder. (Matter of Cole, 219 N. Y. 435.) The clause in question directs the purchase of an annuity for the sole benefit of the brother without any valid gift over and, therefore, he has a right to elect to take the capital sum thereof instead of having it invested for the purpose of purchasing an annuity. The intentions of the testatrix must be gathered from the language which she used. Decree affirmed, without costs. Hill, P. J., McNamee, Crapser and Heffernan, JJ., concur; Rhodes, J., dissents.  