In re the Probate of a Paper Writing Purporting to be the Last Will & Testament of Robinson

Per Curiam:

We agree with the determination of the surrogate of Westchester county that the attempted trust set forth in the 8th, 9th and 10th clauses of the will in question is void. We think, however, that the trust attempted to be created in the 6th and 7th clauses of the will is valid. Thi s trust does not direct any accumulation of income, but because it makes any payment of income or from the corpus absolutely dependent upon the discretion of the trustees under defined conditions, it may be said that it sanctions an accumulation of income during a period which is not measured by a minority. To' this extent the accumulation would be unlawful. Under these circumstances, the. accumulation, if any resulted, would go to those entitled to the next eventual estate, who in this case, as the will is now construed, would be the next of kin of the testatrix. The trust in question can continue, however, certainly as to the corpus of the trust fund during the period defined by the will. In this respect the trust in question is quite similar to the class, well recognized as valid, known as “spendthrift trusts.” We think that Holland v. Alcock ( 108 N. Y. 312 ), cited by the learned surrogate, * does not apply here, for in that case there were no definito beneficiaries of the attempted trust, while here the contemplated beneficiaries aré fully defined by the will as being the next of kin of the testatrix. The decree of the Surrogate’s Court should be so modified as to declare valid the trust set forth in the 6th and 7th clauses of the will, and as so modified affirmed, with costs and disbursements of the appeal payable out of the estate to all the parties who have filed briefs on this appeal.

Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.', concurred.

Decree of the Surrogate’s Court of Westchester county mo'dified so as to declare valid the trust set forth in the 6th and 7th clauses of the will, and as so modified affirmed, with costs and disbursements of the appeal payable out of the estate to all the parties who have filed briefs on this appeal.