The second above-entitled action was brought to construe the 3d clause of the will of William D. Thompson, deceased. The facts are stated in the case of these plaintiffs against these defendants, which was brought to construe another clause of the same will decided herewith. By the clause in question the testator gives to his executors the sum of $100,000 in trust to receive the rents, incomes and profits thereof, and out of the net income to apply to the use of his nephew William D. Thompson, Jr., the annual sum of $700, and “ the whole residue of such net income to apply to the use of Josephine, the wife of the said William D. Thompson, Junior, and their children, by paying the same to her for the support of herself and children during their minority; and as each child attains the age of twenty-one, he or she shall be entitled to receive one equal share of such surplus of income above seven hundred dollars per annum, the same being divided into as many equal shares as there shall be children of the said William D. Thompson, Junior, and Josephine, his wife; and one more share for the said Josephine, which she .shall be entitled to receive for her own use during her life, after all the said children shall have attained the age of twenty-one;” and “ upon the death of the longest liver of them, the said William D. Thompson, Junior, and Josephine, his wife, this trust shall cease, and the trustees shall forthwith transfer and pay over the whole of the trust property and the proceeds and increase thereof to the children of the said William D. Thompson,' Junior, and Josephine, his wife, and if any of said children shall have died leaving issue, such issue shall receive *466their parents’ share.” At, the death of the testator William D. Thompson, Jr., had three children, all infants and unmarried. One of them,. Stephen J.; Thompson, died on April 27, 1897, after attaining majority, without issue, during the continuance of the trust, his mother, Josephine Thompson, being still alive, and the. question presented is as to who is entitled to the share of the income which the said Stephen J. Thompson had received during the continuance, of the trust, or, in other words, whether this income vested in each of the three1 children of William D. Thompson, - Jr., either upon the death of the testator or upon their arriving at the age of.twenty-one years. What was said as to the intention of the testator in making this will in the opinion construing the. 9th clause of the will before referred to is applicable here. It is quite clear that the intent of the testator was to create a fund for the support and maintenance of his nephew William D. Thompson, Jr., and his family.. Thus, he gives a yearly sum to his nephew to be tirst paid out of the income from the trust fund, "the balance of the income to be paid to his nephew’s wife.for the support of. herself and childrens As each child, arrives at the age of twenty-one, however, that child was to have a. share'of the income, which was then to be paid to that -child until the .termination of the trust, subject - to be increased upon the death .of the father, or upon the death or remarriage of the mother. That no right to this income vested in either of the children of William. D. Thompson, Jr., upon the, death of the testator was apparent, for, during their minority, the income was to be paid to their mother for the support of herself and her children. It must be clear that if either of these children had died before arriving at the age of twenty-one, no portion of this income would have been payable to the child’s next of bin, but the income would have been divided as though that, child had never existed. That certainly was the intention of the testator. Then upon the arrival of any child at the. age of twentyione the share of the,income which had before been paid to his mother for his support" was- to be paid to him; but it was -pa'id to him as one of the children 'of William D. Thompson,' Jr., and to carry out the intention of the testator that" the income of this trust fund, was to be .applied to the. support of the .family ’ of his nephew.- The whole intent of the testator as expressed in this clause of the will seems, to be-to provide a,fund- for the *467support of his nephew’s family, to be paid to them in the way that he determined was the most conducive to accomplish that end. To allow a portion of this trust fund to be paid to the legatees of either one of these children dying without issue during the trust would violate what seems to me to be the clear intention of the testator. The bequest of the remainder upon the termination of the trust, upon the principles stated in the opinion construing the 9 th clause of the will, would have to be distributed among those children of William D. Thompson, Jr., who were alive at the termination of the trust except in the contingency of one dying leaving issue, in which case such issue was to receive the parent’s share. Now, it certainly could not have been the intention of the testator to have the income during the continuance of the trust which had been payable to the child who died without issue paid to his legatees when the legatees would not have been entitled to receive any part of the principal upon the termination of the trust. . Upon the whole case, I think that the intention of the testator, as expressed in this clause, was that a share of the income should be paid to each of these children of his nephew William D. Thompson, Jr., upon his attaining the age of twenty-one years; that upon the death of any one of William D. Thompson’s children during the continuance of the trust the share of the income paid to the child dying should be paid to the survivors and their mother in equal shares.
It follows that the judgment appealed from must be modified in conformity with the views herein expressed, and as modified affirmed, with costs to the appellant and to the plaintiffs out of the fund.
Yan Brunt, B. J., and McLaughlin," J., concurred; Rumsey and Hatch, JJ., dissented.