
    (May 12, 1938.)
    In the Matter of the Judicial Settlement of the Accounts of Albert J. Levi and Fannie L. Stern, Administrators, etc., of Sidney J. Levi, Deceased. Olma C. Levi, Appellant; Sarah L. Cohen and Others, Respondents.
   Appeal from an order of the Schenectady Surrogate’s Court which determines that Olma C. Levi “ is not entitled, at common law or under the statutes of this State, to share in the distribution of the estate of the decedent.” The question of the sanity of the appellant was raised in the court below and in this court. We are to determine whether or not Olma C. Levi was the lawful wife of the decedent, Sidney J. Levi, at the time of his death, and entitled, under the statutes of this State, to share in the distribution of his estate. The application for the appointment of a special guardian for her was denied in the court below. This court, on its own motion, determines that the appellant should be represented by a special guardian, and appoints Harold E. Blodgett, of Schenectady, N. Y. This appeal is taken upon the law and the facts. The court determines it is proper to exercise the power granted by section 309 of the Surrogate’s Court Act and appoints George B. Smith, of Schenectady, referee, to take proof and report his conclusions whether the appellant was the lawful wife of the decedent, Sidney J. Levi, at the time of his death, and entitled, under the statutes of this State, to share in the distribution of his estate, and to return the evidence taken to this court. The decision of the Surrogate’s Court is reversed on the law and facts in so far as it denies the application for the appointment of a special guardian. As to the other issues presented, decision is reserved awaiting the report of the referee. Hill, P. J., Rhodes, Crapser, Bliss and Heffeman, JJ., concur.  