
    United States Trust Company of New York, as Trustee under the Will of Benjamin Nathan, Deceased, Respondent, v. Harmon H. Nathan et al., Defendants, and Maud Nathan et al., as Executors of Frederick Nathan, Deceased, et al., Appellants.
    
      Will — construction — gift of remainder to descendants of testatoi-when determination as to who are descendants must he made as of date of death of cestui que trust.
    
    
      U. S. Trust Co. of N. Y. v. Nathan, 196 App. Div. 126, affirmed.
    (Argued January 23, 1922;
    decided February 28, 1922.)
    Appeal from a judgment of the Appellate Division of the Supremo Court in the first judicial department, entered April 25, 1921, which affirmed a judgment entered upon a decision of the court at Special Term construing the will of Benjamin Nathan, deceased. Testator by his will established a trust fund for each of his daughters and provided that in case any should die leaving no issue the principal should be paid to his widow, but “ In case my wife shall not be then living, then, I give and bequeath the same to my descendants according to the law of the State of New York now in force regulating the distribution of personal property in case of intestacy.” The widow died inT879. A daughter died in 1883 without issue. A son died in January, 1918, leaving a wife but no issue, and another daughter died in August, 1918, leaving no issue. The share involved in the present action was the trust fund for the benefit of the last-.mentioned daughter. The question was as of what time are the descendants of the testator to be ascertained. The appellants contended that the descendants referred to by the testator were to be ascertained as of the date of the testator’s death. The respondents contended, and the court below held, that the descendants to whom distribution should be made are those answering that description at the date of the death of the said daughter.
    
      Harold Nathan for executors of Frederick Nathan, appellants. '
    
      Daniel P. Hays for executor of Lucien Moss, appellant.
    
      M’Cready Sykes for plaintiff, respondent.
    
      Lawrence S. Coit and Benjamin G. Paskus for Harmon H. Nathan et al., defendants, respondents.
    
      Michael H. Cardozo, Jr., and Sidney B. Cardozo for Ernest A. Cardozo, guardian ad litem, et al., respondents.
    
      Robert E. Samuels for Arthur M. Wolff et al., respondents.
    
      Walter S. Newhouse for Alan H. Nathan et al., respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Pound, McLaughlin, Crane and Andrews, JJ. Not sitting: Cardozo, J.  