Opinion
October 22, 1945.
Present — Close, P.J., Hagarty, Carswell, Adel and Aldrich, JJ. Settle order on notice.
Judgment settling a trustee's accounts modified on the law by striking therefrom paragraphs V, VI, VII, XIV and XXVI, and by providing in lieu thereof that the remainder of the trust created for the benefit of Caroline Coblence during her life did not vest in the described heirs of her son, Leon, until the death of the primary life tenant, Caroline Coblence, so that survivorship as of that time was essential; and by incorporating provisions for distribution of principal and income in accordance with such construction. As so modified, the judgment, insofar as appealed from, is unanimously affirmed, with costs to all parties filing briefs, payable out of the fund. Conclusions of law inconsistent herewith are reversed and new conclusions will be made. The provision shows that the dominant time for vesting was at the termination of the estate of the primary life tenant, when the trust fund was to be divided into two equal shares. The language employed by the settlors is typical of that which comes within the province of the divide and pay over rule.