(dissenting in part). I dissent, in part, and vote to reverse and order a new trial solely on the issue of the nature and extent of the son’s necessities with an appropriate judgment to be entered providing for a constructive trust in an amount found to be sufficient to meet these necessities to be imposed on the remaining assets of the decedent in the hands of the defendant niece with the remainder to the niece on the death of the son.
The record sustains the finding that decedent’s primary purpose was to provide for the son’s necessities; that she was frustrated in the belief that the son, a Polish national, would be prevented from enjoying the benefit of her estate by reason of what decedent believed to be restrictions on ownership and use of property by Polish nationals. Decedent therefore, relying on the integrity of her niece, transferred all her property to this young woman. There is no question of an arrangement between decedent and the niece, the precise nature of which has not been reduced to writing. The testimony of the niece confirms the purpose of the decedent to make provision for the son and inasmuch as she is an .interested witness the alleged monetary limitation for the payment of $25 on any one occasion is not binding. I do not find Mr. Maday’s testimony incredible; in fact, with the confirming documentation it compels the conclusion of the existence of a secret arrangement.
Since the dominant purpose of decedent was to provide necessities for the son, it is possible to frame a judgment directing *288an accounting and providing for a deposit in court, if necessary, subject to the use and application of the son upon appropriate proof establishing that the son will have the full benefit and enjoyment of any payment made. This provision is consistent with the public policy expressed in section 269-a of the Surrogate’s Court Act, which is to protect foreign legatees to the extent of preventing the appropriation of legacies by foreign governments.
Rabin, Eager and Bastow, JJ., concur with Breitel, J. P.; MoNally, J., dissents in part in opinion.
Judgment dismissing the complaint modified, on the law and the facts, to the extent of granting judgment in favor of plaintiff son, Kazimierz Tebin, providing for a constructive trust in his favor against defendant niece, and for an accounting, together with such other and further proceedings at Special Term as may be appropriate in accordance with the views expressed in the opinion of Breitel, J. P., filed herein, and the judgment, to the extent that it is not reversed, affirmed, with costs to plaintiff son payable out of the funds of the estate, without any costs to any other parties. Settle order on notice.