
    In the Matter of the Estate of Nellie Rust, Deceased.
    Surrogate’s Court, New York County,
    April 1, 1927.
    Wills — construction — testatrix gave specific sum to children of niece in trust until youngest “ surviving” child reaches age of twenty-one — on death of one or more children their bequests were directed to be divided between “surviving ones” — trust limited to minor years of youngest child and is valid — words “ surviving ” and “ surviving ones ” defined — failure to name trustee does not invalidate trust.
    The testatrix, who gave specific sums to children of a niece to be held in trust for them “ until the youngest surviving child reaches the age of twenty-one years,” but in the event one or more of the children died the amount to which they would be entitled is to apply and be divided equally between the “ surviving ones,” must be construed as creating a valid trust which is limited to the minor years of the youngest child, or to one life, namely, the life of the youngest child who survived testatrix.
    The word “ surviving ” refers to those children surviving at the death of the testatrix. The words “ surviving ones ” mean those children living when the youngest child attains his majority or when he dies, if he dies during his minority. The failure of the will to mention a trustee does not invalidate the trust, which, in other respects, is valid.
    Accounting proceeding involving construction of will.
    
      Albert S. Marzo, for the petitioner.
    
      Samuel Lax, special guardian.
   O’Brien, S.

The 4th paragraph of decedent’s will reads as follows: 4th. To the children of my niece Ellen Kennelly I give each one hundred ($100) dollars, this amount to be held in trust for them until the youngest surviving child reaches the age of twenty-one (21) years, and in case of the demise of one or more of the children, the amount to which they would be entitled is to apply and be divided equally between the surviving ones.”

A question of construction of this paragraph has been raised by the accountant who contends that it suspends the vesting of title in property for more than two fives in being.” To sustain this proposition counsel for the accountant argues that the language used in said paragraph correctly translated means that the trust provided for in said paragraph is to endure during the minor years of the youngest of those of the four children who reach their majority or as counsel himself expresses the proposition “ until the last of the said four children attaining the age of twenty-one (21) years shall have attained that age.” From the language of said paragraph thus interpreted he draws the conclusion that certain of said moneys, by the terms used, may be held for longer than two fives in being at testatrix’s death and, therefore, the whole trust is void. This translation of the phraseology of said paragraph is strained and artificial. A simple and certain interpretation which will preserve its validity may be given this paragraph. (Matter of Lally, 136 App. Div. 781, 787; affd., 198 N. Y. 608.) The word “ surviving,” which appears twice in the paragraph, may and indeed should be interpreted in the first instance to refer to those surviving at the time of the death of testatrix. The words “ surviving ones,” used in the last sentence of the paragraph, should be construed to mean those who are living when the youngest child attains his majority or when he dies, if he dies during his minority. Thus interpreted, the trust is limited to the minor years of the youngest child or to one fife, viz., the fife of the youngest child who survived testatrix, and the trust is valid. (Matter of Lally, supra.) While a suggestion was made by accountant that the trust was invalid in one other respect, in that the will fails to mention a trustee, this failure, however, is not fatal if the trust is in other respects valid. (Kirk v. Kirk, 137 N. Y. 510, and other cases cited in Trask v. Sturges, 31 Misc. 195, 201.) Submit1 decree on notice construing the will, settling the account accordingly, and providing for the appointment of a suitable trustee.  