Opinion
April 17, 1950.
Decree of the Surrogate's Court of Kings County adjudging the trust created by subdivision "(d)" of the "Fifth" paragraph of decedent's will to be invalid, modified on the law by striking out the first decretal paragraph and substituting in place thereof the following: "Ordered, adjudged and decreed that paragraph `Fifth', subdivision `(d)' of the Last Will and Testament of Katherine Elias Mallouk, deceased, creates a valid trust of the real property therein specified to terminate with the minority or earlier death of Jeff George Mallouk, the last born grandchild of testatrix living at the time of her death." As so modified, the decree, insofar as appealed from, is affirmed, with costs to all appellants filing briefs in this court, payable out of the estate. The word "last", twice used in the following provision of the said subdivision fixing the termination of the trust: "When the last of my grandchildren, that is to say, the children of my said son and daughter, living at the time of my death attains the age of twenty-one, or upon the death of the last of said children living at my death, whichever event shall sooner occur", was intended by testatrix in each instance to mean the youngest of said grandchildren living at the time of her death. By substituting the word "that" in place of the word "the" before the word "last," when repeated, the intent of the testatrix is clarified and the validity of the trust provision sustained. ( Matter of Lally, 136 App. Div. 781, 787, affd. 198 N.Y. 608; Matter of Smith, 263 App. Div. 588, 589, affd. 289 N.Y. 667; Matter of Gallien, 247 N.Y. 195, 199, 200.) Adel, Sneed, Wenzel and MacCrate, JJ., concur; Johnston, Acting P.J., dissents and votes to affirm the decree for the reasons stated in the opinion of the Surrogate ( 195 Misc. 996).