[142 N.Y.S.2d 648] Raymond F. Loucks, Schenectady, Sp. Guardian for Susanne E. Barnes and Dana A. Barnes, III, appellants-respondents.
Hancock, Dorr, Ryan & Shove, Syracuse (Philip T. Seymour, Benjamin E. Shove, Syracuse, of counsel), for appellants-respondents, John Edwards Barnes, Jr., and Marilyn L. Barnes.
Richard M. Walker, Syracuse, for Faye E. Barnes individually and as Administratrix of the Estate of John Edwards Barnes, deceased, appellant-respondent.
Lawson Barnes, Syracuse, for Merchants National Bank and Trust Company and another, as executors, respondents.
Melvin & Melvin, Syracuse, for Estate of Metta B. E. Barnes, deceased, respondent.
Hiscock, Cowie, Bruce, Lee & Mawhinney, Syracuse (H. Duane Bruce, Philip T. Young, Syracuse, of counsel), for Dana A. Barnes, Jr., petitioner-respondent-appellant.
Before BERGAN, J. P., and COON, HALPERN, IMRIE and ZELLER, JJ.
Appeals by appellants-respondents from that portion of the decree of the Surrogate's Court of Schenectady County (Campbell, S.) which construes the will of Dana A. Barnes, Sr., deceased. Cross-appeal by petitioner-respondent-appellant from those parts of the decree relating to allowances of a special guardian's fee and counsel fees and expenses.
[142 N.Y.S.2d 649] When the testator executed his will in 1903, he was married and the father of two sons, Dana, Jr., 6 years of age, and John, 2 years of age. The testator died a resident of Schenectady in 1910 survived by his widow and two sons. His real estate consisted of an undivided one-half interest in a Syracuse business block which has remained unsold. One son, John, died in 1949 survived by a widow and four children, John, Jr., Marilyn, Susanne and Dana, III. The testator's widow died in 1951. The testator's other son, Dana, Jr., survives.
The portions of the will necessary for a consideration of this construction proceeding are:
'Second: All the real estate of which I may die seized and possessed I give, devise and bequeath unto my said wife Metta B. E. Barnes, in trust, for the following uses and purposes, to wit: To receive, as Trustee, all the rents, issues and profits thereof, and out of such rents, issues and profits to use so much as in her judgment may be necessary for her own maintenance and support, and for the support, education and maintenance of our children, she to act also as sole Executrix of this my Will, and as such Executrix to have the right to sell and convey any and all of my real estate, and to apply so much of the proceeds thereof to her own support, and to the support and education of our children, as in her judgment may be necessary for that purpose in case the income thereof shall not be fully sufficient therefor. Whatever may remain of my real estate at the date of the death of my wife, or whatever may then remain of the proceeds thereof, in case said real estate shall be sold, shall, at the date of the death of my wife, pass to and become the property of my then surviving children in equal shares.
'Third: I give unto my said wife, who will be named as the Executrix of this my Will, the right and ...