
    In the Matter of the Estate of August Diehn, Deceased.
    Surrogate’s Court, New York County,
    May 24, 1944.
    
      Smith & Stanley for Heber Smith, petitioner.
    
      Joseph A. Cox and Margaret ■Smith for James F. Egan, Public Administrator of the County of Hew York, respondent.
    
      Charles F. Fish, attorney designated by the Alien Property Custodian for Theresa Diehn-Slottko and another, persons within enemy-occupied territory, respondents.
   Foley, S.

The attorneys representing Ludwig Diehn, the son of the decedent, have applied in this proceeding brought pursuant to section 231-a of the Surrogate’s Court Act for an allowance out of his share of the estate. In an independent proceeding for the judicial settlement of the intermediate account of the Public Administrator, the Surrogate has denied an application of the son for a partial distribution on account of his intestate share of the estate. (182 Misc. 751.) The Surrogate therein stated that time may show that the son has no interest whatsoever in the estate and that the Alien Property Custodian may make an order vesting the entire balance of the estate under the Trading with the Enemy Act of 1917. (U. S. Code, tit. 50, Appendix, § 1 et seq.)

Under these circumstances, since the right of the son to any present payment has not been established, the application of his attorneys for a payment out of his share must fail. Their application is accordingly denied.

Submit order on notice accordingly.  