When the testator drew his will he had before him a problem which he was endeavoring to work out therein. He had a substantial estate and an only *Page 25 son who was unmarried and was eighteen years of age. He appointed as executors and trustees two men, to each of whom he referred as a friend. Under the trust created by paragraph Tenth, which has been quoted in the majority opinion and need not be repeated, he made his son the sole life beneficiary. We think the Surrogate was correct in holding that the ultimate purpose of the testator was to benefit a widow and issue of his son, the income beneficiary.
The trustees paid over and transferred to testator's son one-quarter of the principal when he reached the age of thirty years. The remaining of the two trustees, when the son reached the age of thirty-five years, "refused to make any further payment of principal" to him. That trustee has now in turn resigned. To hold that there may be exercised by a substituted trustee a discretion as to whether the remaining portion of the estate may be paid over to the testator's son when he reaches the age of forty years requires that the following sentence be entirely disregarded: "It is expressly understood, that these payments are to be made only at the discretion of my trusteesheretofore named." (Italics supplied.) We must assume that the testator knew that the trustees he had appointed might die or resign. Nevertheless he used the word "only" and the words "heretofore named." We do not think that this clear manifestation of the deliberate intent of the testator should be disregarded.
The order should be affirmed, with costs.
LEHMAN, Ch. J., DESMOND and THACHER, JJ., concur with LEWIS, J.; CONWAY, J., dissents in opinion in which LOUGHRAN and RIPPEY, JJ., concur.
*Page 26Ordered accordingly.