(dissenting). The trust in question was not “ fully executed ” within the purview of the Surrogate’s Court Act, section 168, when Edgar F. Luckenbach, for many years sole acting trustee, died in 1943, because under the express terms of the trust a trust function remained to be performed under the auspices of a (testamentary trustee) fiduciary, namely “ to pay the principal of my [Lewis Luckenbach’s] estate to the lawful issue of my said son [Edgar F. Luckenbach] per stirpes and not per capita,” according to clause “ Seventh ” *281of the will. From the same clause it appears that this trust function was to be executed by- the ‘ ‘ Surviving Executor and Trustee,” which would have been the Kings County Trust Company when Edgar F. Luckenbach died, except for the resignation of the trust company in 1908. Clearly under these circumstances, which, in my opinion, distinguish the situation here from that presented in each of several authorities upon which the majority relies, a (successor) trustee functioning under the will should “ pay over.” This trust was not “ fully executed.” The Surrogate had power to appoint a successor trustee. He exercised sound discretion in doing so.
Close, P. J., Carswell and Lewis, JJ., concur with Adel, J.; Taylor, J., dissents and votes to affirm the decree in memorandum.
Decree of the Kings County Surrogate’s Court appointing a successor trustee reversed on the law, with costs to all parties filing briefs, payable out of the estate, and the motion denied, without costs.