Proceeding in the Surrogate’s Court of Queens County for the construction of the last will and testament of Morris Halperin, deceased.
The fourth paragraph of the will created a trust estate of which the decedent’s widow was the beneficiary during her lifetime to the extent of fifteen dollars a week and the balance, if any, during that lifetime passed to decedent’s children, the three residuary legatees. No provision was made in this paragraph for the disposition of the corpus or principal of the trust estate. It accordingly fell into the residuary estate, which, under the seventh paragraph, passes to the selfsame three children whose interests the appellant possesses directly or by assignment.
The alternative provision set out in the fifth paragraph, in the event that a liquidation of the stock was had, never took effect. No such liquidation occurred during the fife of the decedent’s widow. The provisions of the sixth paragraph providing for a disposition of the “ total residue of the trust fund ” have application only in the event that the fifth paragraph of the will became operative. The language in the sixth paragraph is appropriate only to a situation arising in the event that the fifth paragraph takes effect. It is only on such a view that the reference to a “ residue ” of a “ trust fund ” is intelligible.
The only trust fund mentioned in the will is that contained in the fifth paragraph. The dispositions of property contained in the fourth paragraph relate not to a trust fund but to a trust estate. If the language in the sixth paragraph had followed the fourth *540paragraph it might be possible to adopt the respondents’ view that such language constituted a disposition of the principal of the trust estate set out in the fourth paragraph, despite the inept language. But the position in the will of the language of the sixth paragraph following as it does the fifth paragraph, with the last sentence in the fifth paragraph virtually incorporating the language in the sixth paragraph into the fifth paragraph, to which it is particularly appropriate, repels acceptance of the respondents’ contention that the sixth paragraph had reference to the fourth paragraph as well as to the fifth. The corpus or principal of the trust estate created by the fourth paragraph became part of the remainder of the estate and as such passed to appellant under the seventh paragraph.
1 The testator has made a distinction, based on its form, as to whom the corpus of the trust estate was to devolve. He expressed no reason therefor, but a reason is discernible. In liquidated form it could readily be subdivided, without effect on control or administrative convenience, as between his children and his grandchildren, but confining its devolution in its original stock form to his three adult children insured against impairment of control or administrative convenience such as would result from the greater subdividing for which he provided if the corporation were liquidated.
The decree should be reversed on the law, with costs to appellant, payable out of the estate, and the matter remitted to the Surrogate’s Court with a direction to enter a decree in favor of the appellant, May H. Gorman, residuary legatee and assignee of the other two residuary legatees.
Carswell, Taylor and Close, JJ., concur; Lazansky, P. J., and Hagarty, J., dissent and fióte to affirm the decree, each in a separate opinion.