ment before the court in the case cited, the prevailing opinion therein could not have been written.

It results that the remainder which falls in upon the death of the beneficiary, Mary Augusta, vests in equal shares, one in the representative of Frank, deceased; one in the living son, Henry; one in the child of Frank, and one in each of the three children of Henry. The decree may proceed accordingly.

Decreed accordingly.

Matter of the Petition of BROOKLYN TRUST COMPANY, to Render and Settle Its Account as Executor of the Last Will and Testament of MATILDA E. WEBB, Deceased.

(Surrogate's Court, Kings County, December, 1915.)

DECEDENT ESTATE LAW, § 17-PROVISIONS OF-WHEN DECREASES TAKEN INTO CONSIDERATION-VALUATION APPRAISED BY USE OF LIFE TABLES.

In the application of section 17 of the Decedent Estate Law which provides "No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religious or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more," the rule of calculation adopted in Matter of Jolinston (76 Mise. Rep. 391), to wit: "Ascertain the money value of the estate as it remained at death, subtract therefrom the amount of decedent's debts, pay one-half of the remainder to the corporate legatees, whose legacies were subject to reduction," must be followed.

Where by reason of delay in the disposition of the estate there have been decreases as well as appreciations in the value of its property, and there have been accruals of interest or income, the decreases must be taken into consideration in ascertaining the value of the estate as of the time of the death of the testatrix.

Where in the application of section 17 of the Decedent Estate Law it becomes necessary to include in the valuation of the estate the value of vested remainders, they must be appraised by the use of the life tables.

PROCEEDING upon the account of an executor.

Cullen & Dykman, for executor.

Rufus T. Griggs, for objectants, William F. Webb and Lillian M. Etheridge.

Theodore L. Frothingham, for Brooklyn Hospital.

Percy S. Dudley, for Long Island College Hospital.

R. F. Greacen, for Brooklyn Home for Aged Men.

Lewis C. Grover, for Brooklyn Orphan Asylum.

Wood, Cooke & Seitz, for Brooklyn Children's Aid Society.

Henry Joralemon Davenport, for Brooklyn Home for Consumptives.

David Provost, for House of St. Giles the Cripple.

Hubbard & Rushmore, for Home for Friendless Women and Children.

KETCHAM, S.- This accounting requires the application of section 17 of the Decedent Estate Law, which provides:

"No person having a husband, wife, child or parent, shall, by his or her last will and testament, devise or bequeath to any benevolent, charitable, literary, scientific, religions or missionary society, association or corporation, in trust or otherwise, more than one-half part of his or her estate, after payment of his or her debts, and such devise or bequest shall be valid to the extent of one-half, and no more."

It thus becomes necessary to compute the fund of which onehalf is to be paid to the institutions which fall within the inhibition of the statute.

(1) There is then presented the inquiry, Is such fund to be ascertained by subtracting from the value of the estate left at the death of the testator only his debts, or by subtracting also the expenses of administration?

The whole question was answered when it was held that the estate which was subject to the subtraction of the debts paid was the estate to be taken at its value when the testator died. (Matter of Durand, 194 N. Y. 477, 488; St. John v. Andrews Institute, 191 id. 254, 274; Hollis v. Drew Theological Seminary, 95 id. 166, 177, 178; Chamberlain v. Chamberlain, 3 Lans. 348, 358; Frost v. Emmanuel, 152 App. Div. 687, 689; Rich v. Tiffany, 2 id. 25, 28; Harris v. American Bible Society, 4 Abb. (N. S.) 421, 428; Orphan Asylum Society v. White, 6 Dem. 201, 210.)

It would impute absurdity to this interpretation of the statute to suppose that in the words "value at the time of death," or their equivalent, there was defined anything except the monetary measure at the time of death of the property of which the decedent died seized or possessed. While the cases cited contain nothing of authority or tolerance for a contrary view, they were followed and re-enforced by express decisions which state the following formula, already adopted by this court: "Ascertain the money value of the estate as it remained at death, subtract therefrom the amount of decedent's debts, pay one-half of the remainder to the corporate legatees, whose legacies were subject to reduction." (Matter of Johnston, 76 Misc. Rep. 391.)

In Matter of Teed (59 Hun, 63, s. c. 76 id. 567) it is fairly apparent that, under this statute, the calculation of the share of certain religious and educational institutions was based upon the value of the estate at death, less both debts and testamentary expenses; and the case in both of its appeals is an authority

against the present views of this court, although its influence is impaired by the fact that the point was not argued.

In Hollis v. Drew Theological Seminary (95 N. Y. 166) the question was not involved, but the statement was clearly made that the value of the estate was to be ascertained as of the time of death, which necessarily excluded any conclusion or suggestion that the value of the estate was to be that which it should bear after it was depleted by expenses, and, further, that the value at the time of the testator's death was then to be taken after "paying his or her debts," in order to arrive at the sum from which the institutions should receive their statutory share.

In Orphan Asylum Society v. White (6 Dem. 201) Mr. Surrogate SIGNOR derives the rule from Hollis v. Drew Theological Seminary (supra), and in the calculation, spread in his opinion at page 210 of the report, holds that the only deduction to be made from the value of the estate as it stood at death is the amount of the debts.

In Chamberlain v. Chamberlain (3 Lans. 348) the court. states the rule as this court has declared it and, at pages 358 and 359, closes its reasoning with the words: "The deductions authorized are limited to that portion of the estate that may be required to pay the testator's debts, and, by implicaion, exclude everything beyond that, in determining the amount he (the testator) may devise to the corporations, societies and associations mentioned. So far as the testator attempted to exceed the restriction imposed by the statute, his will was invalid, within the express terms made use of. It was valid to the extent of the half of his estate he was permitted by its language to devise and bequeath; but not beyond that."

The court then, after ascertaining the amount of the estate, proceeds: "And, as thus reduced, one-fourth of the estate of the testator left after the payment of his debts would be all that could be claimed by either of the legatees for which those legacies were provided."

In the same case on appeal (43 N. Y. 424) no real discussion is found, but the following language is used, with respect to legacies for charitable and educational institutions: "If the two legacies, when ascertained, shall in the aggregate exceed in amount the one-half part of the estate after the payment of just debts, they must be reduced by proper deductions."

In Currin v. Fanning (13 Hun, 458) the case of Chamberlain v. Chamberlain (supra) is regarded not only as authority that the half is to be computed with reference to the estate at the time of the testator's death, but that the debts are to be first deducted. See page 473 of the report.

In Matter of Hughes (Surr. Decs. N. Y. Co. [1891]) the computation rendered necessary by the statute in question proceeded upon the deduction of debts and without any subtraction of administrative expenses, though the latter item was substantial.

In Hughes v. Stoutenburgh (168 App. Div. 512) the will which was before the court was that which was involved in Matter of Hughes (supra). The opinion of the Appellate Division recites all of the figures which were involved in the decree in Matter of Hughes, which demonstrate that the decree therein was not based upon any subtraction from the value of the estate except debts, and says of the result reached by this calculation that it was in accordance with the rule prescribed in Hollis v. Drew Theological Seminary (supra).

In Estate of Colburn (N. Y. L. J., Dec. 18, 1915) Mr. Surrogate COHALAN, in determining the amount reserved by this statute to legatees who were educational institutions, says: "The amount which the above-named corporations may take is to be ascertained by computing the value of the estate, including the New Jersey real estate, as of the date of death of testator, subtracting therefrom the decedent's debts, and dividing the remainder by two. Administration expenses do not enter into