In re the Estate of McCauley
282 A.D. 964
| N.Y. App. Div. | 1953

—In a proceeding to compel payment of a legacy and for other relief, the petitioner appeals from so much of an order of the Surrogate’s Court, Nassau County, which construed certain provisions of testator’s will as vesting discretion in the trustees to determine whether and when in a calendar year the principal of the trtist should be invaded' for the benefit of the petitioner. Order, insofar as appealed' from, modified on the law by striking therefrom the fourth ordering paragraph, and by striking the words “ in the exercise of *965their sound discretion” from the fifth ordering paragraph and by adding at the end of such paragraph: “without prejudice to the right of the parties to apply for a construction of the ‘ Eighth ’ and ‘ Tenth ’ articles of the will”, and as so modified order affirmed, without costs. Appellant has not appealed from the part of the order which dismissed the proceeding without prejudice. While in form the proceeding was to compel payment of a legacy, the relief sought required a construction of the provisions of the will and citation should have issued to all parties interested. Adel, Acting P. J., Wenzel, MaeCrate, Schmidt and Beldock, JJ., concur.