
    In the Matter of the Accounting of National Commercial Bank and Trust Company of Albany, as Executor of Lilian G. McChesney, Deceased, Respondent. Peter M. Crounse et al., Appellants; Le Roy Crounse et al., Respondents.
   Cross appeals from a decree of the Albany County Surrogate’s Court entered February 3, 1953. The will of Lilian MeChesney provided that I give * * * all the " * * residue ” of " my ” estate to the nephews and nieces of her husband named in his will in such proportion or ratio as he distributed his residuary estate. The Surrogate has held this was a complete disposition of all of this testatrix’ residuary. It is argued by appellants Brown and those who join with her on that appeal that since the wife received part of the husband’s residuary this so disturbed the ratio among the husband’s nephews and nieces that the wife was intestate as to the ratio that would have been her share, and the “ in such proportions ” used by her only passed to the named beneficiaries the proportion of the wife’s estate that they had in the husband’s estate. The weakness of this argument is that this decedent wife gave specifically all ” of the residue of my ” estate to named beneficiaries which swept in, so the Surrogate held and so we also think, her entire residue. On the appeal by Crounse the increase in the husband’s will to him by codicil was in the amount of a specific legacy. It did not affect the ratio that he was entitled to receive in the residuary, and that test, and not the amount of any specific legacy, was expressly provided by the wife to fix the ratio in her residuary clause. Decree unanimously affirmed, with costs to be divided among respondents filing briefs and with disbursements to each such respondent payable from the estate. Present — Foster, P. J., Bergan, Coon, Halpern and Imrie, JJ. [See 283 App. Div. 838.]  