
    BAKER v. HAMILTON et al.
    (Supreme Court, Appellate Division, Second Department,
    October 17, 1906.)
    Action by Seward Baker, as trustee, etc., against Alexander J. F. Hamilton, and others.
   PER CURIAM.

We think the appellant is entitled to the fund in controversy, the distribution being among the persons who answer to the legal definition of next of kin at the time of the death of the testator, and not at the time of the death of his daughter. See Clark v. Cammaun, 160 N. Y. 315, 329, 54 N. E. 709; Doane v. Merc. Trust Co., 160 N. Y. 494, 499, 55 N. E. 296. The first report of the referee should be confirmed, and the judgment modified by providing that the fund in controversy, namely, an undivided one forty-second part of the entire fund, be paid to the appellant, instead of to the respondent Maude Beekman, and, as modified, affirmed, with costs to the appellant against the said respondent.  