In re the Accounting of Thorne

Order affirmed, with $20 costs and disbursements to the parties appearing and filing briefs, payable out of the trust fund. Concur — Botein, P. J., M. M. Frank and Bastow, JJ.; Breitel and McNally, JJ., dissent in part in the following memorandum. We, agreeing in part with the majority of this court, do not find in the will of the donee either expressly or by necessary implication the intent not to exercise the power of appointment. The learned court below properly held that the bequest of the residuary estate to the donee’s son contained in the last will and testament of the donee carried with it the corpus and accumulated income of the trust. (Matter of Deane, 155 N. Y. S. 2d 410, affd. 3 A D 2d 914, affd. 4 N Y 2d 326; Personal Property Law, § 18.) The class of income beneficiaries was limited by the settlor to the lineal descendants of his son, the primary beneficiary, surviving him. Upon the death of the settlor’s son, the trust subsisted for the benefit of the donee’s sole lineal descendant, his son, Joel W. Thorne, Jr., who died testate in 1955, and who, upon the donee’s death, became vested with the remainder. (Crooke v. County of Kings, 97 N. Y. 421.) The settlor’s purpose was to apply the income of the trust corpus to the use of the settlor’s son and his lineal descendants him surviving. The great-grandson was not a lineal descendant “ him surviving ”; and in so viewing him we disagree with the majority of this court and Special Term. Hence, the purpose of the trust was fulfilled upon the death of the settlor’s grandson in 1955, which event served to terminate the trust. (Crooke v. County of Kings, supra.) In the light of the determination made by this court, we express no opinion in respect to the disposition of allowances to the parties. The final order should be modified, on the law, to construe the trust as having terminated on the death of the grandson, and should otherwise be affirmed. [9 Misc 2d 126.]