
    In the Matter of the Probate of the Will of Mary K. Gardner, Deceased.
    Surrogate’s Court, Nassau County,
    April 23, 1959.
    
      William 8. Duncan for petitioner.
    
      Dermod Ives, as special guardian.
   John D. Bennett, S.

In this probate proceeding the request that an indenture dated October 2, 1953, and two subsequent amendments thereto dated February 9, 1954 and December 21, 1954 be probated together with the propounded instrument dated December 21, 1954 is denied. The trust indenture and its amendments are clearly inter vivos transfers to a trustee of a living trust and are not testamentary in character (McCarthy v. Pieret, 281 N. Y. 407; Matter of Ford, 279 App. Div. 152).

The instrument dated December 21,1954, having been executed as required by section 21 of the Decedent Estate Law and it having been established that the decedent was free from restraint and competent to make a will, such instrument will be admitted to probate as the decedent’s will.

Submit decree on five days’ notice.  