
    Matter of the Estate of George J. Weaver, Deceased.
    
      (Surrogate’s Court, New York County,
    
    
      February, 1907.)
    Executors and administbatobs—Abticles set apart and sustenance fob subvivob and children—Money in lieu of articles specified in SUBDIVISIONS 3 AND 4 OF SECTION 2713 OF THE CODE OF ClVIL PROCEDURE, WHEN NOT ALLOWED.
    Where payments to a widow of $400, for mourning apparel and sustenance, and $150, under subdivision 5 of section 2713 of the Code of Civil Procedure, have been credited to the executor in his accounts, the payment of $300 to her in lieu of articles specified in subdivisions 3 and 4 of said section will be disallowed.
    Where articles of copartnership provide that the firm shall continue for sixty days after the death of any partner and a partner who contributed no capital to the firm and had no capital account on its books but was allowed interest on his seat in a stock exchange, died, profits of the firm during such period of sixty days after his death are income and not principal and pass to his widow as the life beneficiary of his residuary estate.
    See 61 Misc. 11.
    Proceedings upon the judicial settlement of the account of an executor.
    Under the will of the testator all his residuary estate was left in trust, the income to go to his wife for life, with provision for the distribution of the principal after her death.
    The executor paid to 'the widow sums aggregating $850, as follows:
    Mourning apparel.............................. $200
    Widow’s sustenance............................ 200
    In lieu of articles mentioned in section 2713, subdivision 3, Code of Civil Procedure..................... 150
    Subdivision 4.................................. 150
    Subdivision 5.................................. 150
    These payments were objected to by the trustee and the special guardian, although it was admitted that, if any payments for these items were proper, the amounts were not excessive.
    At his death the testator was the owner of a seat in the New York Stock Exchange and was a member of a stock exchange firm. The decedent contributed no capital to the firm and had no capital account on the books of the firm. He was allowed interest on his seat at a fixed valuation. Under the articles of copartnership the firm was to continue for sixty days after the death of any partner. The firm so continued after the death of the testator and the profits of the firm during this period, to which decedent would have been entitled if living, amounted to $5,569.75, part of which the executor paid to the widow. The question was raised by objections to the account as to whether this sum should go to the widow as income or to the trustee as capital.
    Charles Henry Phelps, trustee, appearing personally; John P. East, for executor; Grattan Colvin, for widow, Florence H. Weaver; Junius Pendleton Wilson, special guardian for infant, George L. Weaver.
   Thomas, S.

Out of the $850 paid by the executor for the use of the widow he will be credited $550; and the sum of $150 in lieu of articles specified in subdivision 3 and $150 in lieu of articles specified in subdivision 4, respectively, of section 2713, Code of Civil Procedure, will be disallowed.

The amount received from decedent’s firm, pursuant to the articles of copartnership, as the share of profits due to the decedent, will be treated as income and not as principal, and payments thereout already made by the executor will be sustained, and the balance of the income, will be, by the decree to be entered, directed to be paid over to the trustee and by him paid to the widow as income. Tax costs and settle decree on notice.

Decreed accordingly.  