MATTER OF DeSTEFANO

At the time of her death testatrix was the owner of an undivided one-third interest in premises formerly owned in their entirety by her husband, Jacob Van Korb, who died intestate October 19, 1930, leaving him surviving his widow, the testatrix herein, and three daughters, his only distributees. The premises consisted of a three-story building comprising a store on the ground floor and living apartments on the second and third floors. At the time of her husband's death testatrix entered into possession of a portion of the second floor, which she continued to occupy until some months prior to her death, which occurred on March 17, 1942. This occupation was not to the exclusion of the other cotenants and in fact, one of them did occupy the third floor for a period of about five years. During her occupancy of a portion of the premises, testatrix paid all of the taxes except for the years 1939, 1940 and 1941, the last three years of her occupancy. The appellants here filed objections to the account alleging that these taxes remained unpaid and demanded that the executor be directed to pay and satisfy the same out of the assets of the testatrix's estate. For the unpaid taxes for the years 1939 and 1940 the property was sold to the county of Albany at tax sales held prior to the death of the testatrix. These sales constituted a payment and discharge of such taxes. ( Matter of Ueck, 286 N.Y. 1.) There is evidence to sustain the contention that testatrix moved from the premises prior to January 1, 1942, the date on which the 1941 taxes became due. The Surrogate held that any charges or liens which existed against the real property at the time of the death of the testatrix should be paid by her residuary devisees and the distributees of Jacob Van Korb as their interests may appear and that such a determination should be had upon an accounting in a proper forum. The decree of the Surrogate should be affirmed. Decree of the Surrogate affirmed, with costs payable out of the estate. Crapser, Bliss, Heffernan and Schenck, JJ., concur; Hill, P.J., dissents.