Opinion
November 20, 1944.
Present — Carswell, Acting P.J., Johnston, Adel, Lewis and Aldrich, JJ.
Decree of the Kings County Surrogate's Court modified on the law and the facts by striking out the direction therein contained to pay to Josephine A. Schroder the sum of $1,333.33 and by inserting in place thereof a provision that such payment shall be made "unto Carrie G. Buck, as executrix of the estate of Henrietta Lemken, deceased." As so modified, the decree, insofar as appealed from, is unanimously affirmed, with costs to the appellant, payable out of the fund so directed to be transferred. The record indicates that the sum of $4,000, derived from the salvage operation, was an item not included in or covered by the assignment. The amount specified in the assignment had relation only to what had been estimated in the account as coming from the estate of William Lemken. It had no reference to the entirely different item subsequently derived from the salvage operation. Even if it be considered that the assignment on its face is broad enough to include the salvage item, it appears, nevertheless, that there is a potential liability of the executrix for the payment of additional estate and income taxes. Under such circumstances the money should be paid to the executrix pending the determination of those matters. (See Decedent Estate Law, § 124.) The appeal "from the decision of the Surrogate" is dismissed, without costs. No appeal lies therefrom.