
    In the Matter of the Accounting of John R. De Vany, as Executor of Harry S. Gordon, Deceased, Appellant. Edith Gordon et al., Respondents.
    
      Matter of De Vany, 147 App. Div. 494, reversed.
    (Argued April 30, 1912;
    decided May 14, 1912.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 14,1911, which modified and affirmed as modified a decree of the Ulster County Surrogate’s Court surcharging the accounts of the executor herein.
    
      John J. Linson and James Jenkins for appellant.
    
      Howard Chipp for respondents.
   The decree of the surrogate and the order of the Appellate Division are reversed, without costs, in so far as they surcharge the account of the executor with the sum which he received from the legatee, Edith R. Gordon, and as to that item the claim of the executor is sustained, on the ground that the legatee, from whom the money was received by the executor, is the only person who has any interest in having the payment or gift set aside, and because the amount thus received by the executor can in no event become a part of the residuary estate; no opinion.

Concur: Cullen, Ch., J., Gray, Haight, Vann, Werner, His cock and Collin, JJ.  