
    First Department,
    July 1914.
    In the Matter of the Judicial Settlement of the Accounts of Georgiana M. Amidon, Formerly Georgiana M. Ward, as Executrix, etc., of Henry G. Ward, Deceased, Appellant. Newbury D. Lawton, as Executor, etc., Respondent.
    
      Decedents estate — construction of will.
    
    Appeal from a decree of the Surrogate’s Court of the county of New York, entered on the 12th day of April, 1912, directing that the executor of Cyrus Lawton, deceased, be paid a legacy under the will of the testator.
   Per Curiam:

Newbury D. Lawton, as executor of the last will and testament of Cyrus Lawton, deceased, presented to the Surrogate’s Court a petition to require the executrix of Henry G. Ward to account as such executrix and to pay to the petitioner the amount of a legacy directed to be paid to the petitioner’s testator by the last will and testament of Henry G. Ward, deceased. The executrix was required by the surrogate to file an account to which objections were filed and the account and objections were then referred to a referee to hear and determine all questions arising upon the settlement of the said accounts. The testator by his will gave and bequeathed to Cyrus Lawton, the respondent’s testator, “ ten per cent, of all moneys hereafter received from China belonging to me in lieu of all fees or other charges by him made in obtaining the same from my late brother’s estate.” The referee held that by this bequest the petitioner’s testator was entitled to receive ten per cent of all moneys received by the testator or his representatives upon the China claim after deducting the proper expenditures made in collecting the claim. He then determined what in his opinion were the proper expenditures to be deducted from the gross amount paid by the China government and awarded to the petitioner judgment for that amount. Both the petitioner and the executrix excepted. The learned surrogate overruled the exceptions by the executrix but sustained the exceptions by the petitioner and allowed the petitioner ten per cent upon the total sum paid by the China government. We concur with the referee in his disposition of the questions presented. As the whole question is thoroughly discussed in the referee’s opinion, further discussion is unnecessary except so far as to say that we concur generally in the conclusion at which he arrived. The decree of the surrogate is, therefore, reversed, the exceptions taken by the petitioner to the report of the referee are overruled, the referee’s report is confirmed and a decree directed in conformity therewith, with costs to the executor accounting payable out of the estate. Present — Ingraham, P. J., McLaughlin, Scott, Dowling and Hotchkiss, JJ. Decree reversed, exceptions overruled, report confirmed and decree directed in conformity therewith, with costs to executor accounting payable out of the estate. Order to be settled on notice.  