In re the Estate of Rosenzweig

The primary question before the court on these appeals is the effect of the decree herein of Surrogate Cox, dated June 25,1963, affirmed by the Court of Appeals in 19 N Y 2d 92. Respondent contends that such prior decree is res judicata as to the construction issue presented to us by the appellant. We hold that the prior decree and its affirmance did not reach the construction issue presented on this appeal, and that therefore we must determine that issue.

*112The testator devised and bequeathed the residue of his property to his trustees to pay 15% of the income therefrom, but not less than $350…