(concurring.) Since the decision made by this court of Steele v. Ward, 30 Hun, 555, the court of appeals has passed upon the question involved in that ease in Re Eysaman's Will, 113 N. Y. 62, 20 N. E. Rep. 613, and the foregoing opinion of Martin, J., accords with the rule as laid down in the Eysaman Case, and therefore I join in it, and vote to affirm.