(dissenting):
Recognizing the rule that the presumption in this State favors a per capita distribution, and that the presumption yields to a very faint glimpse of a different intention (Matter of Farmers’ Loan & Trust Company, 213 N. Y. 173, 174), I am unable to find from the record any glimpse of a different intention. The distribution of the surplus dividend is directed to be given “ to the lineal descendants of such deceased son in equal shares.” Immediately thereafter, in the next paragraph, the will provides for a distribution of the corpus of the trust fund after the death of Mary E. Yates. This distribution is directed “ equally between my said sons the lineal descendants of any deceased son to be entitled to the portion to which their parent would have been entitled if living.” There appears to be no reason why the direction for the per stirpital division which governs the distribution of the corpus of the fund should not have been included in the provision for the distribution of the surplus income, if the testator had so desired. In fact, the contrary intention would seem to be indicated by the omission. We have no knowledge of the reason why a different direction has been given for the distribution of the surplus income and of the principal. Nor with that reason are we concerned, unless there be something in the will to indicate an intention for the distribution of the surplus income among the lineal descendants of the deceased son otherwise than an equal distribution thereof as directed. While the courts of this State recognize the rule of per capita *272distribution where the contrary intent is not in some way indicated, effect must be given to that rule, and the rule should not be disregarded in this case unless we can find some intent to apply a different rule to the distribution of this surplus income from that which is, as I view it, both presumed and directed by the will.
I vote for affirmance.
Judgment modified as directed in opinion and as so modified affirmed, with costs to all parties appearing and filing briefs payable out of the fund. Settle order on notice.