(dissenting). While recognizing the presumption against intestacy, we are of opinion that to imply a testamentary disposition in subdivision “ 3rd ” of paragraph “ Seventh ” of this will, after the death of testator’s brother, is, in effect, writing a new will. Clause “ 3rd ” set up a separate and independent trust, the income of which was to be paid and, in fact, was paid, to the brother during his natural life. No provision was made by the testator for the disposition of a remainder *387interest. Ho remaindermen were mentioned by name or otherwise. All that the testator did was to devise and bequeath the corpus of the trust to his brother’s children, “ Should my said brother, Joshua Haber, predecease me.” In order to hold that, upon the brother’s death, a remainder interest was to go to the brother’s children, it is necessary to insert in the will the words “ upon the death of my said brother.” We think the testator’s intention to devise and bequeath a remainder interest to the brother’s children may not be necessarily implied. What the testator’s intention was in regard to a remainder interest, if such interest eventuated, is completely unknown since he made no mention of such an interest in subdivision “ 3rd ” or in any other subdivision or paragraph of the will. In this respect, this case is distinguishable from Matter of Selner (261 App. Div. 618). There is here no contingency whatsoever mentioned in Haber’s will, on the happening of which a remainder interest would come into existence. To create a remainder interest in the brother’s children requires an implication based only on surmise and speculation. To uphold a legacy by implication the inference of intention must be compelling. (Bradhurst v. Field, 135 N. Y. 564; Post v. Hover, 33 N. Y. 593.) It is our opinion that the remaining corpus of the trust must be distributed as in intestacy. (Matter of Winburn, 265 N. Y. 366; Dreyer v. Reisman, 202 N. Y. 476; Leggett v. Stevens, 185 N. Y. 70; Brown v. Quintard, 177 N. Y. 75.)
Taylor, P. J., and Wheeler, J., concur with McCurn, J.; Kimball, J., dissents and votes for affirmance in an opinion, in which Vaughan, J., concurs.
Present — Taylor, P. J., McCurn, Vaughan, Kimball and Wheeler, JJ.
Decree reversed on the law and matter remitted to the Surrogate’s Court for further proceedings in accordance with the opinion, with costs to the appellants.