In re the Estate of Guarneri

Wingate, S.

The question herein presented possesses more than usual interest by reason of the fact that, so far as reported cases disclose, it has only once previously arisen in the legal history of the State. A substantially identical situation arose before the surrogate of Oneida county in December, 1914, but no appeal was prosecuted from his decree. It follows, therefore, that in the absence of binding adjudication, the subject is open for independent examination by this court. (Matter of Cohen, 147 Misc. 570, 572.)

Testator died on June 9, 1931, and bis will was probated and letters…