(dissenting):
I agree that the words “ as hereinafter provided ” relate to the shares subject to the trust and that upon the death of the widow the equal shares in the remainder are added to those shares which *679are given to the executors in trust for these same children; in other words, that they are subject to the same trusts. But it seems clear to me that these trusts cease upon the death of each child. Nowhere in the will does the testator in express language subject the remainders after the death of each child to the trusts theretofore created. It is true that the language is somewhat ambiguous, but if it is susceptible of a construction which will vest these sub-shares arising from the death of a child without issue in the surviving children free from the trust, it should be so construed, because in my opinion it carries out the manifest intention of the testator to give these shares to his children and not to d e intestate as to any portion of his estate. It is elementary that such a construction should be given, if possible, which vests the estate and avoids intestacy. When we consider the language of the will that the share of a child dying without issue shall be added to “ the shares of my estate representing my other surviving child or children ” in connection with the language “ .‘t being my intention that the absolute ownership of each share of my estate representing any child or grandchild of mine shall not be suspended except as hereinbefore specified during the single life of the child whom it represents and during the minority of any grandchild,” I think the intention to vest these sub-shares absolutely in the surviving children becomes clear, and that such construction should be given as to carry out that intention.
I do not regard the provision directing the executors to hold the share of an infant grandch Id during minority as a suspension of absolute ownership. The language of the will is that the share of a child dying leaving issue “ shall belong to and vest in ” such issue, but if under twenty-one years, the executors are directed to set apart the share “ to which such infant child will be entitled at the death of the parent,” and hold it during minority, applying the income to its benefit during minority and on such chi'd attaining the age of twenty-one years to pay over to such child the principal, etc. I think this is a case where the gift is absolute and the time for payment only is postponed. The gift is, therefore, not suspended but vests at once upon the death of the parent. (Fulton Trust Co. v. Phillips, 218 N. Y. 573, 582.)
In my opinion there is a suspension of absolute ownership during the life of the widow in one-third of the estate. There is a further suspension as to an equal share given to each child, during the life of such child. This constitutes two lives in being. But upon the death of each child, that share vests either in issue or in the surviving children.
I, therefore, vote to affirm.
*680That portion of the decree of the Surrogate’s Court of Westchester county which sustains the validity of the trust after the life estate of the widow, reversed upon the law, and in all other respects affirmed, with a separate bill of costs to the appellant, the executors, arn^the special guardians, payable out of the fund.