
    John Francis Ives, Plaintiff, v. Central Union Trust Company et al., Defendants.
    
    (Supreme Court, Queens Special Term,
    June, 1919.)
    
      Will — bequest of income to brothers for life with gift over to sister.
    
    Action in partition.
    
      George H. Minor, for plaintiff.
    N. Otis Rockwood, for defendants Montgomery and others.
    Miller, King, Lane & Trafford, for defendant Central Union Trust Co.
    Steele, De Friese & Steele, for defendants Charles H. Ives and others.
    
      
       Affirmed by the Appellate Division, Second Department, February 13, 1920, on the opinion below.— [Repr.
    
   Van Siclen, J.

The apparent intention of the testator was to provide an income for each of his brothers during their respective lives, and after the termination of the trust the principal should go to his sister. The fact that one brother died previous to the testator offered no reason for rendering that expressed intention nugatory. The gift over to the sister, so far as it came through or by way of the deceased brother, became vested immediately upon the death of the testator subject only to the payment of the income that would have gone to the deceased brother if he had lived, to the survivor. The possibility of the death of either brother before the testator’s death was contemplated by the testator, was provided for in his will and was anticipated to such an extent, at least, that no further testamentary disposition, in so far as the death of either brother before the testator was concerned, was deemed necessary. Judgment is directed for the plaintiff.

Judgment for plaintiff.  