The plaintiff, claiming to be a beneficiary of a trust created by the 13th clause of the will of Amos Woodruff, her grandfather, brought this action to have her relation to that trust defined and to have it enforced for her benefit. By the clause of the will referred to, the testator directed that the net proceeds of his personal property, not otherwise disposed of, and the proceeds of sale of his real estate should be divided into five equal parts, as to one of which parts the following disposition was made, viz., “ I also give, devise and bequeath one of those shares to Amos Woodruff, Junior, intrust nevertheless, for the following uses and purposes, that is to say, to invest and keep the same invested and to collect the income and interest thereof and pay over so much of the income and interest (or all of it if necessary) to my son, Henry C. Woodruff, or pay out the same for him as will be necessary for the proper support and maintenance of himself and his children and for the education of his children during the life of the said Henry G. Woodruff. The same is to be. paid to him, or for him, in equal monthly ■ payments, and to invest the surplus, if any, of such income and interest, to be accumulated, and after the decease of the said Henry C. Woodruff, to pay the principal of the said share and the accumulations, if any, to the children of the said Henry G. Woodruff, to be divided *416■equally between them, share and share alike, to have and to hold the same to such children or to the legal representatives of each to and for their own use and benefit respectively forever.”
It appears in proof that at the time of .the death of the testator, Amos Woodruff, his son, Henry C. Woodruff, was a widower with three children. Some years after the death of his father, Henry 0. Woodruff remarried, but it would appear that there are no children of the second marriage. His three children are Isabel Gr. Woodruff, the plaintiff, who is unmarried, Rachel S. Wells and Kate W. Woodward, who are both married and are presumably supported "by their husbands. It. also appears that the income of the' one-fifth of the property held in trust referred to amounted to about $2,000 a year; that the trustee paid therefrom to Henry C. Woodruff, personally, about $150 a month, and that he held in his hands as accumulations at the time this cause was tried about $1,500. It also appears that the plaintiff about eight years ago left her father’s house and since then has lived with her sister, Mrs. Wells. The plaintiff claims a right as a cestui que trust to. some portion of the .income of the trust fund for her support. - Mrs. Wells claims and Mrs. Woodward was adjudged to have a similar right.. After the trial at Special Term the court decided that Henry O. Woodruff and each of his three children had an interest in the net income and share of the estate devised and bequeathed to Amos Woodruff, Jr., in trust for the benefit of Henry C. Woodruff and his children; that the defendant Henry C. Woodruff was entitled to receive onelialf of the net yearly income and interest during his lifetime of that share, and that the plaintiff, Mrs. Wells and Mrs. Woodward were each entitled to receive one-sixth of such yearly net income and interest during the lifetime of their father, and that the trustee be required to pay directly to Henry O. Woodruff one-half of said income and interest during his lifetime, and to the plaintiff and the defendants Rachel S. Wells and Kate W. Woodward each one-sixth thereof during the lifetime of said Henry 0. Woodruff; that the plaintiff and her two sisters were each entitled to receive and the trustee was directed to pay over to each of them one equal undivided one-third part of the surplus or. accumulated income, appearing to be about $1,500,, and that on an accounting (which was directed) Henry O. Woodruff and the trustee were jointly liable to *417the plaintiff and her sisters in the proportion of one-sixth to each, for amounts of income paid by the trustee to Henry C. Woodruff for several years prior to the commencement of this action.
First. The decision of the learned judge at Special Term defining this trust as one created for the benefit of Henry C. Woodruff and his children individually and not .collectively, we think makes the proper interpretation of that part of the 13th clause of the will new under consideration. It was the intention of the testator to provide for the support of his son Henry and for the education and maintenance of the children of that son during the life of said son, the trust fund to be equally divided among such children upon the termination of the trust with the life of Henry C. Woodruff. The claim of the trustee and of Henry C. Woodruff is that the plaintiff and her sisters have no right to any portion of the income unless the family relationship was maintained, and that the plaintiff having ceased to live with her father, and her sisters having married, they are entitled to no portion of the income — in other words, the contention is that the plaintiff and her sisters were entitled in no event to support, except through their, father, wrho was to be the recipient of the whole income — less what the trustee might accumulate under the provision of the will. We think this contention is untenable. The children were entitled to a portion of the income for education, and, in plain words, they are also entitled to it for maintenance. The testator’s son was entitled to support, but not absolutely to the extent that would .exhaust the whole income. The' trustee was not bound to pay the whole income to Henry C. Woodruff for his personal use. He might pay it for or to the use of Henry Wood-ruff for his support or for the support of his children. As was said in Allen v. Farmers' Loan & Trust Co. (18 App. Div. 27) “ there is no mention made in this clause of a family relation or that the continued existence of one is- contemplated, save that the relations" of the parties in interest would naturally constitute an association in' the family relation. But the income could be easily applied and effect given to the provision, although there should be no family relation existing.” ¡Nothing contrary to this view is to be gathered from other provisions of the will. It is suggested that the 6th clause affords ground for the contrary construction of the provision *418of the 13th clause now under consideration. By that 6th clause the use of a dwelling house in .the city of Hew York as a residence for Henry C. Woodruff and his children free from rent and taxes is-given, and it is urged that by the 6th clause a dwelling house being provided for Henry 0. Woodruff and his children, by the 13th clause provision is made for their support and that thus the continuance of a family relation was contemplated by the testator. But it will be noticed that under the 6th clause the use of the dwelling house is given to Henry Cl Woodruff and his children only until the decease of the testator’s Avife, if she survive him, but if she died before him then that use Avas only given until the. decease of the testator himself.
Second. While we agree Avith the trial judge as to the general nature of this trust, we do not concur with', him in the view that the children of Henry C: Woodruff were entitled to share in the income of the trust fund in the same proportion in which they Avould be entitled to that fund in remainder ón the termination of the trust. There is nothing in this will Avhich authorizes a distribution of the income m that proportion or which entitles the plaintiff and her sisters to claim any definite or fixed amount of the .income. Under the provisión in question, the trust income should be apportioned among the beneficiaries in such Avay as to provide for.the necessary support and maintenance of Henry 0. Woodruff and his children. • The words of -the will are' that the trustee shall “ pay over so much of the income and interest * * * as will be necessary for the proper support and maintenance,” etc. If no part of the income were necessary for the support of Mrs. W ells or Mrs. Woodward it would be competent to apportion the income between Henry 0: Woodruff and the plaintiff, The division of the income made by the learned judge is altogether arbitrary. There is evidence to show that the plaintiff requires some portion of this income .for her support. There is none to show that her sisters do, and, therefore, we are of the opinion that upon this branch of the case the decision of the court below was erroneous.
Third. The ruling of the.trial judge as to the accumulations was correct. The provision of the will respecting the accumulation of any portion of the income is clearly void under the statute..- Those accumulations were made strictly in accordance with the provision *419of the will and in furtherance of an invalid intention of the testator. It was not his purpose that any part of what the trustee might set aside as accumulation should ever go to Henry 0. Wood-ruff, and as the trustee has never apportioned any part of the accumulations as income to Henry C. Woodruff,. he cannot claim any of it in any relationship, but the amount thus accumulated must take the direction which the statute gives it and go to those entitled to the next eventual estate in the trust fund, namely, the plaintiff and her two sisters. (1 R. S. 726, § 40.)
Fourth. Neither Henry G. Woodruff nor the trustee is bound to account to the plaintiff or her sisters for any portion of the income heretofore paid by the trustee to Henry C: Woodruff. Previous to 1896, a general notice was served upon the trustee of the claimed rights of the plaintiff in and to the trust fund, notwithstanding which he continued to pay $1,500 a year to Henry C. Woodruff; but those payments were made strictly in accordance with the authority given to him by the will. We cannot ignore the-provision that he was authorized to pay directly to Henry C. Wood-ruff. He did, in this respect, nothing more nor less than his duty. It may be that Henry C. Woodruff was constituted a sub-trustee to pay over a portion of what he received to his children needing support, but as none of them seem to have demanded anything from him, it would be inequitable now to charge him with moneys received before • the commencement of this action. But as neither the trustee nor Henry 0. Woodruff has paid anything to the children, and both claim that those children have no right separate from their father, we think this is one of the cases in which the court, in the exercise of its jurisdiction over trusts and on the failure of either the father or the trustee to provide for the children’s support, will assume itself the distribution of the income among those entitled to it by reason of their requiring support.
The judgment in this case is an interlocutory one, for it provides for an accounting and a reference, and that judgment should be modified by providing: First. That the plaintiff and her sisters are entitled- to share in the income for their support • if any portion of the income is required for that purpose. Second'. That the accumulations shall bo divided among the plaintiff and her sisters. Third. That the referee named in the interlocutory judgment ascertain and *420report which .of the children require income. of this trust fund ■ for their support and what proportion of such income should he paid to Henry 0. Woodruff and what to either or all of the children. Fourth. That the trustee and Henry G. Woodruff áre neither of them required to account for moneys paid to Henry C. Woodruff prior to the commencement of this action.
The costs of the, plaintiff and of the trustee to be paid out of the income of the trust fund.
Rumsey and O’Brien, JJ,, concurred; Van Brunt, P. J., and McLaughlin, J., dissented.