
    In the Matter of the Construction of the Will of Gullabi Gulbenkian, Deceased. Chouchane Baliozian et al., Appellants; Gullabi Gulbenkian Foundation et al., Respondents.
    Argued March 1, 1961;
    decided March 30, 1961.
    
      
      James N. Vaughan, Jeremiah P. Lyons and Stephen A. YeghiaÁan for Chouchane Baliozian, appellant.
    I. General rules were used below to take the place of testator’s intention and thereby the courts were led into error. (Matter of Wronkow, 127 Misc. 679; Matter of Dinkel, 133 Misc. 868; Matter of Bonner, 157 Misc. 810; Matter of Stroh, 171 Misc. 681; Matter of Skinner, 81 App. Div. 449, 180 N. Y. 515; Rezzemini v. Brooks, 236 N. Y. 184; Morris v. Sickly, 133 N. Y. 456; Matter of Crane, 164 N. Y. 71; Matter of Embree, 9 App. Div. 602, 154 N. Y. 778; Matter of Allison, 53 Misc. 222, 122 App. Div. 898, 194 N. Y. .540; Matter of Krooss, 302 N. Y. 424; Matter of Carlin, 6 A D 2d 281, 6 N Y 2d 914.) II. The intention of testator as collected from the whole will is to make substitutionary gifts to descendants of his brothers with respect to the trust created by paragraph Fifth. (Taggart v. Murray, 53 N. Y. 233; Scott v. Guernsey, 48 N. Y. 106; Matter of Wells, 113 N. Y. 396; Matter of Hinchman, 141 App. Div. 95; Matter of Gallien, 247 N. Y. 195; Matter of Durant, 231 N. Y. 41.) III. The words of gift to the several descendants of Badrig and Harutune should not be rejected as meaningless unless the court is compelled to that result. (Matter of Buechner, 226 N. Y. 440; Matter of Tamargo, 220 N. Y. 225; Matter of Denton, 137 N. Y. 428; Fowler v. Ingersoll, 127 N. Y. 472; Mullarky v. Sullivan, 136 N. Y. 227.) IV. The language of the residuary clause convincingly demonstrates, when compared with the language elsewhere used in the will and particularly paragraph Fifth thereof, that the language in paragraph Fifth makes the descendants of Badrig and Harutune substituted remaindermen of the trust under that paragraph. V. The Attorney-General in the court below relied on cases which do not successfully answer our argument. (Matter of Campbell, 307 N. Y. 29; Connelly v. O’Brien, 166 N. Y. 406; Matter of Krooss, 302 N. Y. 424; Riker v. Gwynne, 201 N. Y. 143; Matter of Montgomery, 282 N. Y. 713; Matter of Evans, 284 N. Y. 571; Matter of Tompkins, 154 N. Y. 634.)
    
      Arthur W. Siegrist, Albert B. Maginnes and Bud G. Dolman for Araxia Buckhantz and another, appellants.
    The intention of-testator, as evidenced by the express terms of his will, was that, on the termination of the trust, the remainder shares of his deceased brothers should go to “ their several descendants per stirpes ’ ’. (Matter of Evans, 234 N. Y. 42; Matter of Fabbri, 2 N Y 2d 236; Matter of Gautier, 3 N Y 2d 502; Matter of Buechner, 226 N. Y. 440; Matter of Barr, 233 App. Div. 290, 258 N. Y. 592; Matter of Krooss, 302 N. Y. 424; Matter of Simons, 16 Misc 2d 352; Matter of Burggraf, 12 Misc 2d 152; Matter of Kilborn, 15 Misc 2d 938; Matter of Fedders, 187 Misc. 207.)
    
      Joseph P. Flemming and Nicholas J. Dealy, III, for National Safe Deposit & Trustee Company, appellant.
    I. The descendants of Badrig and Harutune Gulbenkian were substitutional legatees under paragraph Fifth of the will of Grdlabi Gulbenkian. The will read as a whole entirely supports a construction that paragraph Fifth provides for substitutional remaindermen. An excision from paragraph Fifth of the words “ and their several descendants per stirpes ” is unjustified. (Matter of Evans, 234 N. Y. 42; Matter of Buechner, 226 N. Y. 440.) II. The words ‘‘ per stirpes ’ ’ in paragraph Fifth remove any doubt that the words “ and their several descendants” constitute a substitutional gift of the remainder. (Matter of Krooss, 302 N. Y. 424; Matter of Barrett, 141 Misc. 637; Steinway v. Steinway, 163 N. Y. 183; Matter of Thompson, 270 N. Y. 131; Matter of Title Guar. & Trust Co., 159 App. Div. 803, 212 N. Y. 551; Matter of Fedders, 187 Misc. 207; Matter of Kilborn, 15 Misc 2d 938; Staples v. Mead, 152 App. Div. 745, 214 N. Y. 625; Matter of Olds, 100 Misc. 388; Matter of Kelling, 206 Misc. 998.) III. Badrig and Harutune G-ulbenkian having predeceased the income beneficiary, the remainder under paragraph Fifth of the will of Gullabi Gulbenkian vested in their several descendants, as substitutional legatees, upon the death of the income beneficiary. (Matter of Fischer, 307 N. Y. 149; Schwartz v. Rehfuss, 129 App. Div. 630, 198 N. Y. 585; Clark v. Cammann, 160 N. Y. 315; Matter of Bierhoff, 271 App. Div. 743, 297 N. Y. 694; Matter of Meahl, 241 App. Div. 333; Matter of Burdsall, 128 Misc. 582, 221 App. Div. 756; Matter of Doerschuck, 8 Misc 2d 422; Matter of Swift, 204 Misc. 399; Matter of Watson, 262 N. Y. 284; Matter of Clark, 120 Misc. 191; Matter of Montgomery, 258 App. Div. 64, 282 N. Y. 713; Matter of Campbell, 307 N. Y. 29.)
    
      George Mutterperl for Hermáne Guerdan, appellant.
    I. The intention of testator must be ascertained from language used in his will. Testator’s will clearly expressed his intention to create substitutional gifts in paragraph Fifth. (Robinson v. Martin, 200 N. Y. 159; Mullarky v. Sullivan, 136 N. Y. 227; Matter of Durand, 250 N. Y. 45; Matter of Buechner, 226 N. Y. 440; Matter of Wolf, 171 Misc. 788; Matter of Rooker, 248 N. Y. 361; Matter of Bisconti, 306 N. Y. 442; Matter of Fabbri, 2 N Y 2d 236; United States Trust Co. of N. Y. v. Taylor, 193 App. Div. 153, 232 N. Y. 609; Staples v. Mead, 152 App. Div. 745; Matter of Tamargo, 220 N. Y. 225; Matter of Barr, 233 App. Div. 290, 258 N. Y. 592.) II. The remainder was contingently vested in the named remaindermen subject to being divested by their death prior to the termination of the trust. (Dougherty v. Thompson, 167 N. Y. 472; Matter of Schaefer, 160 Misc. 43.)
    
      William D. Tucker for Edward H. Gulbenkian, appellant.
    I. In order to take as remaindermen of such trusts, both Badrig and Harutune had to survive the life tenant, otherwise such remainder passed entirely to “ their several descendants per stirpes ”. (Keteltas v. Keteltas, 72 N. Y. 312; Matter of Watson, 262 N. Y. 284; Matter of Krooss., 302 N. Y. 424; Matter of Gautier, 3 NY 2d 502; Matter of Wronkon, 127 Misc. 679; Matter of Finaly, 20 Misc 2d 320; Matter of Tamargo, 220 N. Y. 225.) II. In construing said will, the verbiage of testator throughout the entire document must be analyzed and taken as a whole. Accordingly, the terminology used in paragraphs Third, Fourth, Sixth, Ninth and Eleventh of his will is cumulative and leads to the conclusion that, by the words ‘1 and their several descendants ” in paragraph Fifth, testator intended to create a class of substitute remaindermen. (Matter of Fabbri, 2 N Y 2d 236; Matter of Krooss, 302 N. Y. 424; Matter of Evans, 234 N. Y. 42; Matter of Buechner, 226 N. Y. 440; Goodwin v. Coddington, 154 N. Y. 283; Eidt v. Eidt, 203 N. Y. 325.) III. It was error to sustain the Surrogate’s decision in construing testator’s will to the effect that, in providing for distribution among “ the several descendants ” of testator’s brothers, there was nut a substitutionary gift over. (Matter of Fedders, 187 Misc. 207; Matter of Barr, 233 App. Div. 290, 258 N. Y. 592; Matter of Simons, 16 Misc 2d 352; Matter of Gardiner, 20 Misc 2d 722.)
    
      Louis J. Lefkowits, Attorney-General (Julius Greenfield and Paxton Blair of counsel), for Attorney-General of the State of New York, respondent.
    In this will, this testator intended to vest the remainder of this trust absolutely in his two brothers without any substitutionary gifts to their descendants. If substitutionary gifts were intended, they were to take effect only if the brothers predeceased testator. Since the brothers survived testator, the remainder of the trust passed pursuant to their respective wills to the charitable foundation. (Matter of Fabbri, 2 N Y 2d 236; Matter of Campbell, 307 N. Y. 29; Connelly v. O’Brien, 166 N. Y. 406; Matter of Watson, 262 N. Y. 284; Matter Krooss, 302 N. Y. 424; Riker v. Gwynne, 201 N. Y. 143; 
      Matter of Montgomery, 258 App. Div. 64, 282 N. Y. 713; Matter of Evans, 165 Misc. 752, 258 App. Div. 1037, 284 N. Y. 571; Matter of Ablett, 3 N Y 2d 261; Nelson v. Russell, 135 N. Y. 137; Matter of Gautier, 3 N Y 2d 502.)
    
      Abraham Rosten for Gullabi Gulbenkian Foundation, respondent.
    I. Badrig Gulbenkian and Harutune Gulbenkian took vested remainders under the will of Gullabi Gulbenkian. (Matter of Thompson, 279 N. Y. 131; Matter of Tamargo, 220 N. Y. 225; Matter of Allen, 151 N. Y. 243.; Matter of McParlan, 169 Misc. 1027; Matter of Campbell, 307 N. Y. 29.) II. The courts below properly determined that testator did not intend to make a substitutionary gift to descendants of the named remainder-men in paragraph Fifth of his will. (Keteltas v. Keteltas, 72 N. Y. 312; Matter of Watson, 262 N. Y. 284; Dougherty v. Thompson, 167 N. Y. 472; Connelly v. O’Brien, 166 N. Y. 406; Matter of Krooss, 302 N. Y. 424; Matter of Wronkow, 127 Misc. 679; Morris v. Sickly, 133 N. Y. 456.)
    
      Burton C. Meighan for Raphael Esmerian and another, respondents.
   Burke, J.

In the Fifth paragraph of the will under construction, decedent left $300,000 in trust to his wife for life. The paragraph further provides: “ I give and bequeath the remainder of said trust fund, upon her death, to my brothers, Badrig Gulbenkian and Harutune Gulbenkian, in equal shares and their several descendants per stirpes ” (emphasis added).

The issue here presented is whether' the concluding phrase bequeathing to the “ several descendents per stirpes ” is to be considered as surplusage or as a substitutionary gift conditioned upon the death of the remaindermen. It is oiir opinion that decedent intended a substitutionary gift.

Testator died July 23, 1918, survived by his wife, the life beneficiary, and Ms brothers, the remaindermen, both of whom predeceased the wife who died in 1957. By their wills, the remaindermen bequeathed their entire interest in the trust to the Gullabi Gulbenkian Foundation, a charitable corporation created by the testator in the will presently under consideration. In this construction proceeding, appellants contend that the remainder interests were vested subject to being divested, in favor of the descendants per stirpes, if remaindermen were not living at the time of distribution. The Gulbenkian Foundation, represented by the trustees and the Attorney-General of the State of New York, contends, on the other hand (1) that the gift was indefeasibly vested, and (2) that if any substitution was intended it was to take effect only if the remaindermen failed to survive the testator rather than the life beneficiary. The latter alternative suggested by the respondents is not, according to well-settled authorities, acceptable.

“ [I] t is quite correct that ordinarily where there is a devise or bequest to one person and in case of his death to another, it is to be construed as referring to death in the lifetime of the testator. However * * * ‘ [t]here is * * * a qualification, or, more properly speaking, an addition to this rule which is equally well established, and this seems to have been overlooked by the learned [court below] ’ [cases and authority cited]. ‘As cases very like the present demonstrate, absent language pointing a contrary intention, words of survivor-ship refer to the time of the testator’s death “ only in the case of an absolute devise or bequest to one and in case of his death to another ’ ’; they carry no such implication where, as in the will under consideration, the first devisee or legatee takes a life estate. (Mullarky v. Sullivan, 136 N. Y. 227, 231; see, also, Matter of Parsons, 242 N. Y. 246, 250; Matter of Buechner, 226 N. Y. 440; Matter of Palis, 220 N. Y. 196, 204; Lyons v. Ostrander, 167 N. Y. 135, 140; Restatement, Property, § 251, p. 1266.) ’ (Matter of Gautier, 3 N Y 2d 502, 508, supra.) (Matter of Larkin, 9 N Y 2d 88, 92-93.)

The more difficult problem presented is whether the testator intended an indefeasible vesting rather than, as in Matter of Larkin (supra), a vested remainder in fee subject to being divested by the remaindermen’s failure to survive. In other words, did he intend by any event whatever to have the children take by substitution (Lyons v. Ostrander, 167 N. Y. 135; Matter of Bigelow, 285 App. Div. 1072), or was the final phrase in the Fifth paragraph merely one of limitation, describing the nature of the estate. Since the latter construction would require us to treat the final words as mere surplusage, it must pass rigorous tests.

These words obviously were not utilized to prevent a lapse of legacy. At the time of the execution of the will herein, section 29 of the Decedent Estate Law provided that there could be no lapse of legacy in situations of this kind.

We have said that “ Words are never to be rejected as meaningless or repugnant if by any reasonable construction they may be made consistent and significant.” (Matter of Buechner, 226 N. Y. 440, 443.) Therefore, even if this single phrase were somewhat equivocal, we may still glean the testator’s dominant purpose ‘ from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed.” (Matter of Fabbri, 2 N Y 2d 236, 240, emphasis supplied; Matter of Gautier, 3 N Y 2d 502); and this purpose must prevail regardless of the fact that a literal interpretation might yield an inconsistent meaning because of the language or format employed. (Matter of Larkin, supra, p. 91; Matter of Fabbri, supra.) The phrase, however, in and of itself is indicative of testator’s ultimate purpose and does evidence an awareness of the fact that his brothers might not survive. If he had intended an indefeasible gift, he could have ended paragraph Fifth after the bequest of the remainder “in equal shares ”. His addition of the phrase “ and their several descendants, per stirpes,” certainly is a disclosure of his intention to have the descendants take the share of the parent who failed to survive distribution. (See Matter of Barr, 233 App. Div. 290, 293, affd. 258 N. Y. 592 on the concurring memorandum at the Appellate Division.)

The inarticulate use of the word ‘ ‘ and ’ ’ instead of “ or ” is of no consequence in this text. Although a use of the disjunctive (which we may substitute in place of the conjunctive used, Roome v. Phillips, 24 N. Y. 463, 469; Scott v. Guernsey, 48 N. Y. 106, 121; Matter of Wells, 113 N. Y. 396, 402-403) would have mandated a substitutional construction of the remainder interest, we are persuaded to draw the same conclusion by a comparison of paragraph Fifth with the other dispositive provisions. For example, in paragraph Eleventh testator made it abundantly clear that the residue of his estate was to be indefeasibly vested in his brothers under any and all circumstances by using-the time-honored and perfect words of limitation, i.e., 11 their several heirs and assigns, absolutely ’ ’. However, in paragraphs Third, Fourth and Sixth, the contingency of a demise prior to distribution is concededly provided for by the substitution of descendants and the method in which they should share, i.e., per stirpes. In this light, we should not distort by excision the almost precise language used in article Fifth merely because it was not as clearly spelled out as in the Third, Fourth and Sixth paragraphs. It is of much more significance that the testator failed to use established words which he knew would surely (as in par. Eleventh) create an indefeasible gift. (See Matter of Krooss, 302 N. Y. 424, 428-429.) His adoption, instead, of other technical language used in other provisions to provide a substitutionary gift makes it ‘ ‘ clear and decisive ’ ’ that the remainder, rather than absolute, was subject to qualification, i.e., survival.

Moreover, a belief that a substitutional gift was intended gains support from the presumption in favor of a testator’s relatives as against strangers to his blood (7 Warren’s Heaton, Surrogates’ Courts, Construction Favoring Heirs and Next of Kin, § 21, par. 3, p. 171; Matter of Robinson, 155 Misc. 412, 415; March v. March, 186 N. Y 99; Matter of Larkin, supra), regardless of the fact that the ‘ stranger ’ ’ in this instance was a charitable foundation originally created by the same testator with distinct funds in another provision of the will. A reading of the will as an entity indicates decisively that testator segregated his funds carefully, indicating his desire in certain instances, as here, that they be enjoyed by his closest blood relations and their descendants.

This conclusion is also not inconsistent with the familiar canon of construction required in doubtful cases in order to obtain an early vesting (Walsh, Law of Property, Rules of Construction, § 246 et seq.; however, see § 253). Nevertheless, it should once again be emphasized that ‘ ‘ [n] o such construction mandates that property be indefeasible/ or absolutely vested. * * * the courts have held that the ‘ language, such as that used by the testator here, or language substantially identical, creates a vested remainder in fee subject to be divested by the remainderman’s failing to survive the life beneficiary ’ if the remainderman leaves descendants surviving [cases cited]. In the latter event the children take by substitution [cases cited] ” (Matter of Larkin, supra, p. 93).

Accordingly, the order appealed from should be reversed, with costs to all parties filing briefs, payable out of the estate.

Fold, J. (dissenting).

Gullabi G-ulbenkian died in 1918, survived by his wife and two brothers. By paragraph Fifth of his will, he left the sum of $300,000 in trust for his wife for life and provided for the disposition of the remainder upon her death in this way:

"I give and bequeath the remainder of said trust fund, upon her death, to my brothers, Badbig Gulbenkiah and Haeutuhe Gtjlbehkian, in equal shares and their several descendants per stirpes.”

It seems quite clear to me, as it did to the Surrogate and all of the Appellate Division Justices, that the remainder interest vested indefeasibly in Badrig and Harutune, provided only that they outlived the testator.

However, the appellants contend, and the majority accepts the contention, that the phrase, “and their several descendants per stirpes ”, provided for a substitutionary gift to the heirs of Badrig and Harutune and somehow or other required them to survive the widow. I find no warrant for such a construction and, accordingly, conclude that, since each of the brothers was living when the testator died, each of them became entitled, absolutely and in fee, to the remainder gift, and it mattered not that they predeceased the life beneficiary.

The determinative factor is, of course, the intention of the testator as expressed in the will and, in ascertaining what it was, we should not ignore settled rules and principles of construction. In other words, when a .will contains language which has acquired, through judicial decision, a definite and established significance, the testator is taken to have employed the language in that sense and with that meaning in mind. (See Matter of Krooss, 302 N. Y. 424, 428.)

In the case before us, the testator made a gift to named persons—his brothers Badrig and Harutune — and used words of present gift — “ I give and bequeath These are pointed indications that the testator intended them to have indefeasibly vested remainders. (See Matter of Campbell, 307 N. Y. 29, 34; Matter of Montgomery, 282 N. Y. 713, affg. 258 App. Div. 64; Connelly v. O’Brien, 166 N. Y. 406, 409; see, also, 3 Restatement, Property, §§ 256, 257.) As this court stated in the Campbell case (307 N. Y., at p. 34), “The use of the phrase, ‘upon the death of,’ as an adverbial expression of time has on innumerable occasions been interpreted to annex futurity only to possession and not to the substance of the gift. * * * ‘ An explicit present gift of a future interest implies, in the absence of contrary indications, that the intervening estate * * * merely suspends the enjoyment of the interest and does not prevent the vesting thereof.’ (Powell, op. eit. [Real Property, 1950, Vol. 2], § 331, p. 735; see, also, [3] Restatement, Property, op. cit., § 257.) ”

It is indisputable, therefore, had the sentence ended with the provision for the gift of the remainder, upon the wife’s death, to his two brothers “ in equal shares ”, that the brothers would have taken vested remainders. And I do not believe that the words which followed—“and their several descendants per stirpes ” — changed the nature of the bequest or cut down the character of the estate. Additional language, we have written (Matter of Krooss, 302 N. Y., at p. 428), “ will not be read as qualifying or cutting down the estate unless that language is as clear and decisive as that which created the vested remainder. ’ ’

The claim that the phrase “ and their several descendants per stirpes ” bespeaks a substitutionary gift is actually negated by the language which the testator used in other portions of his will. He knew how to provide for such a gift, whenever he so intended, in clear and unmistakable terms, in the event of the prior death of a beneficiary. In each of paragraphs Third and Fourth, for instance, he gave $50,000 to a named sister and explicitly provided that, 11 in case of her prior death”, the bequest was to go ‘‘ to her descendants per stirpes ’ ’. And in paragraph Sixth, the testator set up á trust for a nephew for 10 years and, in providing for the disposition of the funds if the nephew died during the 10-year trust period, he used language reflecting meticulous attention to the matter of survivorship: ‘ ‘ In case of his death prior to the expiration of said ten years periodthe testator declared, “I give and bequeath the remainder of said trust fund to his descendants, if any, per stirpes

The careful wording of this provision as to the devolution of the remainder of the trust fund is in sharp contrast with that of paragraph Fifth and renders almost irresistible the conclusion that under such provision the remainder was to vest in Badrig and Harutune absolutely. As this court observed in Mullarky v. Sullivan (136 N. Y. 227, 231), involving a somewhat similar situation, “ The difference in meaning and language between the two provisions is so pronounced that it serves to emphasize the different intention which the testator had rather than to furnish an argument in support of the proposition that the intent in both cases was the same.”

Matter of Larkin (9 N Y 2d 88), upon which the appellants rely, is quite different from the case before us. In Larkin, too, the words of survivorship were explicitly set forth, just as in paragraph Sixth of the present will and in sharp contrast to the language of article Fifth. In Matter of Larkin, the will gave the testator’s wife a life estate, granted the remainder to his three sons and provided that, “ In the event that any of my sons should die leaving descendants, said descendants shall take the share of any such deceased son, per stirpes ”. This is far different language than that which is here under consideration.

It was not the words, “descendants per stirpes”, which imported into the clause in the Larkin will the requirement of survivorship; it was, rather, the reference to the death of the sons, coupled with the explicit provision that, if they “ should die leaving descendants ”, such descendants “ shall take ”. These are the “ words of survivorship ” to which the principle (quoted from Matter of Larkin, 9 N Y 2d, at p. 93) applies, namely, that ‘ ‘ ‘ words of survivorship refer to the time of the testator’s death “ only in the case of an absolute devise or bequest to one and in case of his death to another ”; they carry no such implication where, as in the will under consideration, the first devisee or legatee takes a life estate. [Cases cited.] ’ (Matter of Gautier, 3 N Y 2d 502, 508, supra.)

In short, it is only a reference to the remainderman’s death, or his failure to survive, which justifies the construction, contended for by the appellants, that the remainder vests upon the death of the life beneficiary rather than upon that of the testator. Here, I repeat, there is no reference to death or survival of the testator’s brothers, and none is to be found in the reference to ‘ ‘ descendants per stirpes ’ ’.

Indeed, at the very least, to render the phrase, “ their several descendants per stirpes ”, words of purchase, rather than of limitation, it would have to be preceded by the conjunction “or” instead of “ and ” (Restatement, Property, § 252)) and in the present context there is nothing to warrant this court’s rewriting the will in this fashion. (See, e.g., Matter of Campbell, 307 N. Y. 29, 34, supra; Matter of McParlan, 169 Misc. 1027, 1030.) In the Campbell case, we refused to read the word “and” as “or” where, as here, it would defeat the early indefeasibility of the remainder, aptly noting that the appellants’ “ argument borders on verbal legerdemain, confusing as it does the time of enjoyment of the remainder with the time of its vesting in interest ” (307 N. Y., at p. 34).

The testatrix in Campbell had created a trust for the lives of a sister and a cousin, the remainder, upon their deaths, to go to her nephew Carl and his heirs. If the nephew predeceased them, then, the will provided, the corpus was to go to certain charities. The remainder to Carl was held to be absolutely vested, except in the event that he predeceased both sister and cousin. Since he predeceased only the sister, we hold his remainder to be absolutely vested. Although the problem posed was slightly different from that presented here, what we there wrote is particularly pertinent (307 N. Y., at p. 35): “ If [the testatrix] had created a trust for the lives of her sister and cousin with a remainder to Carl, if he be living at their deaths, his interest would then have been conditioned upon his surviving the other two and would have become indefeasibly vested only if he were alive at the termination of the trust. ’ ’

So, in the present case, if the testator had bequeathed the remainder, upon his wife’s death, to his “ surviving ” brothers or to his brothers “ if they be living at her death ”, the necessary words of survivorship would be present and would evince the intent that their interest was to be conditioned upon their surviving the life beneficiary. Absent such words, or language of similar import, the will reflects the testator’s intention that his brothers were to have indefeasibly vested remainders if they were alive when he died.

I would affirm the order appealed from.

Judges Dye, Froessel, Van Voorhis and Foster concur with Judge Burke ; Judge Fuld dissents in an opinion in which Chief Judge Desmond concurs.

Order reversed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate, and matter remitted to the Surrogate’s Court for further proceedings in accordance with the opinion herein. 
      
       “ Third : I * * * bequeath to my sister * * *, and in ease of her prior death, to her descendants per stirpes, the sum of Fifty Thousand Dollars ($50,000).
      Fourth: [Same to another sister] # * *
      Sixth : [Trust to pay income to nephew for 10 years and then to pay principal] In ease of his death prior to the expiration of said ten years period, I give and bequeath the remainder of said trust fund to his descendants, if any, per stirpes, and in ease he shall die within said ten years period without issue, then * * * to the trustees of the Armenian Hospital of Saint Savior at Constantinople,”
     