FIRST: Denies any knowledge or information sufficient to form a belief as to each and every allegation contained in the paragraphs of the petition 86 herein designated "Third", "Fourth", "Fifth" and "Sixth".

SECOND: Alleges that the trusts created in and by Subdivision (B) of Clause "Third" of the Last Will and Testament of Fredric W. Jenkins, Deceased, and in and by Clause "Seventeenth" of said Will, are illegal and invalid; that the testator died intestate as to the corpus of said trusts and the Estate of Mary R. Jenkins is entitled to receive one-third of the corpus of said trusts, if it be determined that she survived the testator.

THIRD: Alleges that the heirs of Mary R. Jenkins, Deceased, are entitled to receive payment of the bequest contained in the third clause of said Last Will and Testament, in Subdivision (A) thereof.

WHEREFORE, your respondent prays that a decree be made determining the validity, construction and effect of Clauses "Third" and "Seventeenth" of the said Last Will and Testament of Fredric W. Jenkins, Deceased, and judicially determining the right, title or interest of the heirs at law and next

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Report of Special Guardian.

of kin of Mary R. Jenkins, Deceased, in the Estate
of said Fredric W. Jenkins, Deceased, or any part
thereof, whether under the provisions of said Will
or otherwise; and for such other and further re-
lief in the premises as to the Court may seem just
and proper.

JOSEPH HASKELL,
Attorney for Respondent,

Franklin B. Crouch,
Office and P. O. Address,
45 John Street,
Borough of Manhattan,
City of New York.

Report of Special Guardian.

SURROGATE'S COURT,

BROOME COUNTY.

[SAME TITLE]

I, G. MEAD WILLSEY, attorney and counselor at law, having an office in the City of Binghamton, Broome County, New York, and having been heretofore duly appointed special guardian for

Edward Leighton, only child, heir-at-law and
next of kin of Ethel Leighton;

James Vinton Stowell, Jr., Mary Elizabeth
Stowell and Jean Stowell, only children,
heirs-at-law and next of kin of Ruth J.
Stowell;

Future born child, children or descendants, if
there should be any, of Ethel J. Leighton
and Ruth J. Stowell;

Report of Special Guardian.

and having filed a consent to act as such guardian, do hereby report:

That the infants in being and future born children have no immediate vested interest in the Estate of Fredric W. Jenkins, deceased, either under the will of the deceased as it is written, or in the event it shall be determined that he died intestate as to a portion or all of his property, as long as the decedent left him surviving two daughters who are the mothers of said infants.

In the event that the $75,000.00 trust created in Paragraph "Third (B)" and the trust of the rest, residue and remainder created in Paragraph "Seventeenth" could be upheld, then and in that event the infants would have a contingent interest which might become vested upon the death of their mother prior to the end of the four year period, but from an examination of the law it appears that said trusts are void. In view of the fact that the trust with reference to the residuary is void, any determination with reference to the lapsing of other legacies contained in the will would be immaterial as to the rights of said infants.

The infant Edward Leighton has a contingent interest in the trust created in in Paragraph "Fourth (B)" which would become vested in the event of the death of his mother, Ethel J. Leighton, prior to the end of the four year period. In the event, however, his mother lives until the end of said four year period, the infant would have no interest.

The infants, James Vinton Stowell, Jr., Mary Elizabeth Stowell and Jean Stowell, have a contingent interest in the trust created in Paragraph "Fifth (B)" which would become vested in the

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Decision.

event of the death of their mother, Ruth J. Stowell, prior to the end of the four year period. In the event, however, their mother lives until the end of said four year period, the infants would have no interest.

In neither of the trusts established in Paragraphs "Fourth (B)" or "Fifth (B)" would any future born children participate for the reason that the children who would participate are named and no mention is made of future born children. The decision as to the priority of death of Mr. and Mrs. Jenkins is of no moment so far as the infants are concerned as that determination could have no effect upon the interests of said infants.

Dated, Binghamton, New York, December 2, 1936.

G. MEAD WILLSEY,

Special Guardian for Edward Leighton,
James Vinton Stowell,
Vinton Stowell, Jr., Mary
Elizabeth Stowell and Jean Stowell,
and future born child, or children or
descendants if any there should be, of
Ethel J. Leighton and Ruth J. Sto-
well.

Jenkins, Deyo & Hitchcock, attorneys for the Administrator with the Will Annexed and as Trustee thereunder.

G. Mead Willsey, special guardian for infants. Paskus, Gordon & Hyman, attorneys for Dorothy Crouch Harris and others.

Joseph Haskell,
Haskell, attorney for Franklin B.
Crouch.

BAKER, S.

This proceeding involves the determination of 99 the issue as to whether or not Mary R. Jenkins the wife of said testator survived him and, if not, for the construction of Subdivision (A) of the Third paragraph of the last Will and Testament of said Fredric W. Jenkins, deceased, and the effect of all provisions in said last Will and Testament for the benefit of said Mary R. Jenkins and the disposition to be made of all such bequests; and also as to the validity of the trusts created in paragraphs Third and Seventeenth of said last Will and Testament.

Concerning the issue as to whether or not Mrs. Jenkins survived the decedent, a hearing was had