The provisions of paragraph “ Third,” subdivision IV, are somewhat obscure, but “ the court struggles to preserve, and surrenders to nothing short of obvious compulsion.” (Matter of Gallien, 247 N. Y. 195, 200.) Although the word “ trust ” is used, there is mention neither of the receipt nor of the application of income. There is a passive trust. (Verdin v. Slocum, 71 N. Y. 345; Monypeny v. Monypeny, 202 id. 90; Matter of Rogers, 251 App. Div. 478.) No estate vests in the trustee. (Real Prop. Law, § 93.) Petitioner is presumptively entitled to the next eventual estate, and, therefore, presently to the income (Real Prop. Law, § 63), unless the provisions of paragraph “ Third,” subdivision IV, are entirely invalid. An analysis of all possible contingencies demonstrates that under no circumstances will there be a suspension of the power of alienation for more than two lives in being at the death of the testator, except as to one-sixth of the one-quarter share mentioned in the paragraph and subdivision under consideration. This would be one-half of the share held for the children of the son first dying, as to which there is a failure of valid disposition and which passes as intestate property. (Purdy v. Hayt, 92 N. Y. 446; Matter of Drake, 153 Misc. 691; affd., 246 App. Div. 758.) In this way the entire estate, except one-twenty-fourth thereof, would be distributed as the testator wished. This may be done without avoiding or doing violence to the intent of the testator. (Purdy v. Hayt, supra; Matter of Drake, supra.) The petitioner is presently entitled to the income. As petitioner’s father may possibly have other children and she may die before her father or uncle Walter, and her uncle Walter may possibly have children, it is unnecessary to make any further, determination at this time.
Taylor, J. (dissenting).I dissent and vote to affirm the surrogate’s determination. I am of opinion that subdivision IV of paragraph “ Third ” of the will under construction is void as violating the statutes against perpetuities, and, therefore, that the one-fourth share of the residuum, the subject of attempted disposition therein, passed as intestate property. Appellant concedes that as to the *537one-twenty-fourth of the residuum, i. e., one-sixth of the one-fourth mentioned in subdivision IV, the same is void. I think that the invalid suspension of the power of alienation for three lives in being at the time of the testator’s death permeates the entire attempted disposition in subdivision IV, rendering the latter wholly void.
I am further of opinion that the excision of a clause of the will, as suggested in the determination of the majority, will defeat the testator’s express testamentary wishes and is, therefore, improper. (Matter of Moore, 120 Misc. 825, 829; Bailey v. Buffalo L., T. & S. D. Co., 213 N. Y. 525, 536, 537.)
Decree of the Surrogate’s Court of Westchester county, construing the will of the testator and directing distribution of assets in accordance with such construction, in so far as appealed from, reversed on the law, with costs to all parties filing briefs, payable out of the estate of Frank Gorham, Sr., deceased, and matter remitted to the Surrogate’s Court for the making of a new decree in accordance with the opinion herein.