I dissent. It seems to me that the testator intended that so much of the income derived from the trust estate as would enable his son Henry, to properly support himself and family, and educate liis children, should be paid and belong to him. The words used to express the intent negative any other conclusion'. His words are, “ 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 0. 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 C. Woodruff. The same is to be paid to him, or for him, in equal monthly payments * * *.” What did the testator inean ? What did he have in mind ? What did he want done' with the income ? Manifestly, that all of it if necessary was to be given to Henry for the purpose mentioned. Unless this be so, then there is no force in the words “ for the proper support and maintenance of himself and his children and for the education of his children.”
This view is also sustained when this clause of the will is read in connection with the 6th clause, in which the testator gave to Henry, for a specified time, “ the use of the dwelling house * * * where he now resides, to be used- as a residence for himself and children * * *.” The legal right of' the children, or any of them, to the income, or any part of it, paid by the trustee to Henry, is limited to support and education while they are members of Henry’s family. Two of the daughters are now married and are *421presumably supported by their respective husbands, upon whom rests the legal obligation to support. The third daughter voluntarily left her father’s house and refused to be there supported by him. Under such circumstances, neither she nor the other two daughters have any right to receive any part of the income paid by the trustee to Henry. There is no magic in the words “ or pay out the same for him.” This expression means that the same is to be paid as he may direct. The income was for him. It was for his benefit. It was directed to be paid to him, and it was to be actually paid to him unless he directed otherwise.
The case of Pell v. Folger (68 Hun, 443) is in point. There the testator bequeathed to'his wife certain property and provided that “ every and all of said property to be used and the income from it to be received and used for the benefit of herself and sister Emily Grant, during the natural life of my wife; ” and it was held that Emily Grant had no interest in the estate, the court saying that the property was held by the wife “ for the benefit of herself and her sister, it is true ; but it is equally evident that it was optional with her what amount should be used for the benefit of her sister, and no legal obligation which could be enforced rested upon her in that regard.” Here it was optional with the trustee as to how much of the income should be paid to Henry, and once that payment was made, then it was optional with Henry how much of the same should be used for the support of his family, including the, plaintiff and the other two daughters, if they were members of his family, and how much of it should be used for the education of his children. For these reasons I cannot concur in the opinion of Hr. Justice Patterson.
I think the complaint should have been dismissed, except as to the accumulated income, and as to that, it should be divided equally among the three daughters.
Van Brunt, P. J., concurred.
Judgment modified as directed in the opinion, and as modified affirmed, the costs of the plaintiff and of. the trustee to be paid out of the income of the trust fund.