The will of Albina Chase, who died May 7, 1909, made provision during the life of her husband, William H. Chase, for his support, and for that of her unmarried daughter, Ella M. Chase, to whom was also bequeathed the household furniture and effects. William H. Chase died March 16, 1919.
By the 4th paragraph of the will the executors, acting as trustees, were required within three years after the death of her husband to set apart and keep “ safely invested in a separate fund ” $1,000, the annual income to be paid to Ella M. Chase “ for her said use and benefit as a separate fund until she, said Ella M. Chase, may either marry or die. In the event of her marriage said income is to forthwith cease and end and she shall participate in the distribution of the estate moneys after the death of my said husband in the same manner as the other children, that is equally in respect to what remains of my estate after the separate bequest to my son, Everett W. Chase, hereinafter provided for, shall have been carved out.
“After the said $1,000 shall have been taken out for the benefit as aforesaid of my said daughter Ella, then I direct the payment to my son, Everett W. Chase, of the sum of $300. * * * ”
In the same paragraph it was directed that the remainder of the estate be divided among her six children equally.
By paragraph 5 it was provided that after the death of the daughter Ella, the said $1,000 left in trust for her use and benefit should be divided equally among four grandchildren named “ except as otherwise provided herein, and except that it shall go and pass to their survivors if any of said grandchildren shall die, before the said division shall take place, or before the death of said Ella M. Chase.”
On March 8, 1910, Ella M. Chase married. The question presented is, did the $1,000 provided as a separate fund for her maintenance as a spinster fall into the estate for division between her brothers and sisters and herself, and the bequest to the grandchildren thereby fail, or was the sum excluded from the remainder and vested in the grandchildren subject to be divested as to the share of one whose death occurred before that of Ella M. Chase?
*800It is a question of judgment in ascertaining the intent in the mind of the testatrix. Authorities are of little assistance. It is a question of interpreting the particular language used in the will, which is redundant and somewhat obscure.
I reach a different conclusion from that of the learned surrogate who holds that the intention of the testatrix was “ in the event of the marriage of her daughter, Ella, the trust for her benefit for life ended and the principal thereof became part of the testatrix’s residuary estate and that the grandchildren only took the principal upon the death of Ella unmarried.” I incline to the view that the household furniture, the $1,000 provided as “ a separate fund ” for Ella’s support, and the gift of $300 to Everett were excluded in the mind of the testatrix from the residuary estate to be divided equally among her children. (Roseboom v. Roseboom, 81 N. Y. 356.) She evidently had an affection for her grandchildren and desired to make them a small bequest. This she definitely expressed in the 5th paragraph. There would be manifest reason for postponing its enjoyment on their part until the death of their unmarried aunt who received the income from this fund; but I can see ho reason why the testatrix should absolutely deprive her grandchildren of this bequest and give it to those already provided for, in the event their aunt elected to marry.
The residuary estate was fixed by an exclusion of three legacies and bequests heretofore mentioned, and provision was made in the will for its division among the children of the testatrix. In the event of the marriage of Ella the income was to cease and she was to participate equally with the others in the estate, with the exception of Everett. When the income ceased, she did participate equally. Nowhere does the will direct that the moneys twice mentioned as “ a separate fund ” shall be cast into the residuary estate.
There was no provision in the will disposing of the income of the $1,000 separate fund in the event Ella married, so this income is payable during the time the ownership is suspended to the grandchildren as the “ persons presumptively entitled to the next eventual estate.” (Real Prop. Law, § 63, as amd. by Laws of 1916, chap. 364; Pers. Prop. Law, § 11; St. John v. Andrews Institute, 191 N. Y. 254.) Upon the death of Ella M. Chase, the corpus of the fund should be divided among the grandchildren or their survivors.
The part of the decree distributing the estate appealed from should be reversed, with costs payable out of the estate, and said decree modified by adjudging that the executors retain $1,000 and the accumulations thereon since the death of William H. Chase on March 18, 1919, and distribute said accumulations and income *801equally among said grandchildren during the lifetime of Ella M. Chase, and upon her death to make division of the corpus of said fund among the grandchildren or their survivors.
All concur, except Clark and Sears, JJ., who dissent in an opinion by Clark, J.