
    In the Matter of the Petition of David W. Smyth for Construction of Will and to Compel Payment of Legacy of Samuel Smyth, Deceased. Samuel Smyth, Jr., and Another, as Executors, etc., of Samuel Smyth, Deceased, and Samuel Smyth, Jr., Individually, Respondents; David W. Smyth, Appellant.
   Paragraph ninth of the will provided that in the event any person named in it shall directly or indirectly institute or become an acting party to any proceeding to set aside, interfere with, or make null any provision of the will, any bequest or devise in his favor shall be revoked and become part of the residuary estate. The testator, who was the equitable owner of all the stock of the corporation, bequeathed all his stock and interest in the corporation to appellant’s brother. Appellant, who was also named as a legatee, believing he was a stockholder in the corporation, instituted an action in the Supreme Court for waste and an accounting. Before the trial of that action he learned he was not a stockholder, and thereupon the action was discontinued upon consent. Assuming the above provision of the will is valid, we are of the opinion that appellant did not violate it. By instituting the action he was not attacking the testator’s right to dispose of the stock or the beneficiary’s right to receive it. He was merely asserting in good faith his own title to a part of it, and as soon as he learned he was not the owner of the stock he discontinued the action. In other words, he was merely proceeding upon the mistaken notion that he was a creditor of the estate. Decree of the Surrogate’s Court of Queens county in so far as it denies the petitioner’s application and adjudges that Samuel Smyth, Jr., is entitled to the payment and delivery of the sum of $5,000 and to all the stock of the testator in Wamba Realty Company, reversed on the law, with costs to both parties, payable out of the estate, application granted, and the executors directed to pay to the petitioner the legacy of $5,000 provided for in paragraph sixth of the will, with interest thereon from July 26, 1934, and to deliver to him the certificate of shares of stock of Wamba Realty Company therein mentioned. (Woodward v. James, 44 Hun, 95; Matter of Marshall, 119 Misc. 407; Wright v. Cummins, 108 Kan. 667; 196 Pac. 246; 14 A. L. R. 604.) Young, Hagarty, Davis and Johnston, JJ., concur; Lazansky, P. J., not voting. [155 Misc. 775.]  