
    (53 Misc. Rep. 244.)
    In re WEAVER’S ESTATE.
    (Surrogate’s Court, New York County.
    January, 1907.)
    1. Executors and Administrators—Allowance to Widow.
    An executor paid to the widow $400 for mourning apparel and susteance, and $150 under Code Civ. Proc. § 2713, subd. 5. Held, that a payment of $300 in lieu of articles specified in subdivisions 3 and 4 of such section will be disallowed.
    2. Life Estates—Income.
    Copartnership articles provided that the firm should continue for 60 days after the death of any partner. A partner, who contributed no capital and who had no capital account on the books, but who was allowed interest on his seat in a stock exchange, died. Held, that the profits of the firm during the 60 days after his death passed to his widow, as the life beneficiary of his residuary estate, as income, and not principal.
    In the matter of the judicial settlement of the executor of George J. Weaver, deceased. Decree rendered.
    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, subd. 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 thé 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 60 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 $5,509.75, 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, in pro. per.
    John P.-East, for executor.
    Grattan Colvin, for widow.
    Junius Pendleton Wilson, special guardian, for infant.
   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.  