(dissenting):
The question involved in this appeal is whether under the provision of the deed it is the duty of the trustee to pay over the entire income of the trust fund created for the benefit of the infant to the general guardian, leaving the discretion as to what portion thereof shall be expended for the use of the infant in the guardian, or whether the discretion is reposed in the trustee by virtue of the deed to determine what portion shall be applied to the use of the said infant, in which case the trustee cannot be compelled to pay the entire income to the general guardian.
The majority of this court have determined that it was the intention of the grantor, as expressed in the deed of trust, that the discretion as to what portion of the income shall be “ applied ” to the use of the infant is reposed in the trustee, whose duty it is to attend personally to the expenditure of the *10income and to the care of the infant. It has been repeatedly held that where a deed or will creating a trust has required a trustee to “ apply ” the income from trust funds “to the education and support of an infant ” it becomes the duty of the trustee to make a personal application of the funds to the infant’s needs for those specific purposes and to hold the accumulated surplus. The majority of the court rely upon one of these cases. (Matter of McCormick, 40 App. Div. 73; affd. without opinion, 163 N. Y. 551.) It seems to me, however, that the language of the instruments involved in these cases is clearly distinguishable from the language of the present deed of trust, in that, whereas in the cases relied upon there is an express direction for the trustee to apply the income for a specific purpose, namely, the education and support of the infant, in the case at bar the direction is merely a general one to apply the income to the use of the infant. The Court of Appeals has held in cases dissimilar-in their facts to the case at bar that a direction .to receive the income from trust property and pay it over to a beneficiary is equivalent tó a direction to apply the income to the use of a beneficiary within the meaning of the Revised Statutes authorizing express trusts; or, in other words, that the two expressions are synonymous in their meaning. (Moore v. Hegeman, 72 N. Y. 376; Leggett v. Perkins, 2 id. 297. See 1 R. S. 728, § 55, subd. 3, as amd. by Laws of 1830, chap. 320, § 10; now Real Prop. Law [Gen. Laws, chap. 46; Laws of 1896, chap. 547], § 76, subd. 3; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 96, subd. 3.) Following these cases it has been held by this court in the case of Gasquet v. Pollock (1 App. Div. 512; affd. on opinion below, 158 N. Y. 734) that a direction to a trustee to receive the interest, income and profits of a share of an estate and to “ apply the same to the use ” of the testatrix’s daughter during her life was equivalent to a direction to pay over the entire income thereof to the daughter, and reposed no discretion in the trustee as to how the income should be expended. The court there said (at p. 513): “There was no discretion given the trustees to apply to her use a part only of the income, nor as much as her needs required, nor as much as, in the judgment of the trustees, she needed. The whole income was given to the daughter and she is entitled to *11have it all. The fair construction of the language used in the will is that the income shall be paid over as it accrues to the daughter.”
The court proceeded to hold that as the daughter was of unsound mind and was represented by-a committee of her person and property, the committee was entitled to have the income paid over to him. That case,it seems tome, is not distinguishable in principle from the case at bar. The language of the will is almost identical in its terms with the language of the present deed of trust, and the fact that the beneficiary in that case was an adult of unsound mind represented by a committee, whereas in the present case the beneficiary is an infant represented by a guardian, does not seem to me a valid ground of distinction. The real question was whether the direction to “apply the [income] to the use ” of the beneficiary required the trustees to pay over the entire income and left no discretion in the trustees as to how it should be applied. The status of the beneficiary has no bearing upon the meaning of the language, and the rale would apply as well to an infant as to an adult beneficiary. If the infant in the case at bar were of full age he would clearly be entitled to receive all of the income from the trustee, and being represented by his guardian, the guardian is entitled to receive the income and to apply it to the use of the infant in its discretion.
I think there is no force in the respondent’s contention that the grantor, in selecting the trustee, must of necessity have intended that the trustee should use its discretion both as to the investment and care of the trust fund and of the maintenance and care of the infant. Trustees are generally selected with a view to their ability in caring for and investing the trust property, and the qualifications which would fit a trustee for such a duty would not of necessity also fit him for the duty of guiding the destinies and shaping the life of an infant. Where these additional burdens are imposed upon the trustee it ia customary for the instrument creating the trust expressly so to provide either by a direction to apply the income to the education, etc., of the beneficiary or by some other specific injunction with respect to how the money is to be applied. There is, in my opinion, no reason for imposing such duties *12upon the trustee merely by virtue of a general direction to apply the income to the use of the beneficiary.
I think the decree should be modified in accordance with the foregoing.
Laughlin, J., concurred.
Judgment affirmed, with costs to plaintiff and guardian payable out of the fund.