Estate of Peyton

BARNARD, P. J.

This is an appeal from an order determining heirship and decreeing that the sum of $10,154.86 be distributed to the surviving widow as a part of the residuary estate. This amount is the testator’s share of the proceeds from the sale of certain real estate mentioned in the second paragraph of the will of Gilbert S. Peyton, who died at 1:45 a.m. on December 15, 1954. This second paragraph, so far as material here, reads:

“To my three sons, Gilbert Lewis Peyton, Wayne German Peyton, and Arnold Taylor Peyton, in equal shares, I give my interest in the New York property, which consists of the following:

“Property at Crown Street and Bedford Avenue, Brooklyn, New York.”

The seventh paragraph of this will provided as follows: “All the rest, residue and remainder of my property, real, personal and mixed, and of whatever nature, kind and description of which I shall die seized or possessed, or to which I may be entitled, which shall include all my bank accounts and all of my insurance,. . . I give, devise and bequeath to my wife, Hazel S. Peyton.”

Hazel S. Peyton was married to the deceased approximately three years prior to his death. His former wife, Leonore German Peyton, had died in San Diego in November, 1942. She owned a half interest in the real property here involved, on which there was a brick building. The other half of this property was owned by her brother Gale T. German. By her will she gave her interest in this property to her husband and their three sons, a one-fourth part to each. As a result, Gilbert S. Peyton and his three sons each acquired an eighth interest in this real property.

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It appears, without question, that this real property was sold, that the full purchase price was paid, and that title passed to the purchaser on November 16, 1954. On November 17, 1954, Gale T. German, who lived in New York, wrote to Gilbert S. Peyton enclosing the checks given for the purchase price, amounting to a total of $79,692.81, saying that the bank refused to accept them for deposit (on the ground that the power of attorney he held was not sufficient) until they were endorsed by Mr. Peyton and the three sons, and asking him to sign the checks “and pass them along to the boys to sign, and have the last one return them to me.” These funds were later deposited in the New York bank in an account under the name of “Gilbert S. Peyton & Gale T. German or survivor.”