
    United States Trust Company of New York, as Substituted Trustee under the Will of Ella S. Hoffman, Deceased, Respondent, v. Olga Baes, Respondent, and Albert E. O. Ormsby, Appellant, Impleaded with Others.
    (Argued March 2, 1927;
    decided March 29, 1927.)
    
      Will — direction for distribution of principal of trust fund to “ issue ” of cestui que trust living at her death construed to require distribution per stirpes, not per capita.
    
    
      U. S. Trust Co. v. Baes, 216 App. Div. 807, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1926, unanimously affirming a judgment of Special Term construing the fourth clause of the will of Ella S. Hoffman, deceased. By the clause in question testatrix directed payment of the income from a trust fund to her daughter as long as she should live and upon her death the principal “ be paid to her issue, if any shall then be living.” The daughter survived testatrix and thereafter died leaving a daughter and grandson, the child of said daughter. The question was whether the granddaughter of testatrix took the entire fund or whether it should be divided between her and her son. The trial court held that a disposition per stirpes and not per capita was intended and, therefore, the granddaughter took the entire fund.
    
      Alfred L. Becker, Harter F. Wright and James J. Franc for appellant.
    
      George L. Shearer, William A. W. Stewart and John Henry Mottola for plaintiff, respondent.
    
      Albert Stickney and Sewell T. Tyng for defendant, respondent.
   Judgment affirmed, with costs to all parties appearing, and filing separate briefs herein payable out of the residuary estate; no opinion.

Concur: Crane, Andrews, Lehman, Kellogg and O’Brien, JJ. Dissenting: Cardozo, Ch. J., and Pound, J.  