.1 do not concur in the construction given to this will in the prevailing, opinion. I think it was the-evident intent of the testatrix .to create a trust in favor of her son, which was to last during, his , life unless her executor, in the exercise of his discretion, should see fit to terminate, the trust .by'delivering the property to the beneficiary., T-he death of the executor and trustee-lias rendered it impossible for this discretion to be exercised; and while it is probable that the testatrix did riot contemplate that her 'husband would die . before the time arrived in which-this, discretion was to be exercised-,. " and, therefore,.-made ño provision for that contingency, Still there was a valid trust by which the beneficiary was to receive the income of the testatrix’s property during his life unless'the trust was sooner, terminated by the trustee. It is also true that the -testatrix vested the trustee with a discretion as to the amount of the income to be-*313paid to the beneficiary. Bat still the trust was for the benefit of her son. and unless the executor actually exercised his discretion and sooner terminated the trust, the trust was to last during the lifetime of her son. An accumulation of income would be void and would go to the testatrix’s next of kin as the owner of the next eventual estate. (Real Prop. Law [Laws of 1896, chap. 547], § 53 ; Code Civ. Proc. §§ 2732, 2734 ; Schermerhorn v. Cotting, 131 N. Y. 48, 61 ; Cochrane v. Schell, 140 id. 516.)
I think, therefore,, that the referee correctly determined the question submitted by him, and that the judgment appealed from should be affirmed, with costs.
O’Brien, J., concurred.
Judgment modified as directed in opinion, and as so. modified affirmed, with costs to both .parties payable out of the trust fund held by the defendant.