concurrence">Rumsey, J. :

I concur with Mr. Justice Barrett that by the terms of the 4tli clause of the second codicil it was the duty of the trustees to pay over all the income which they had not appropriated to the beneficiaries under the trust created by that codicil to the body of the estate, and I agree with him that the direction thus to pay it over required that it should be paid to the executors under the will.

But I do not agree with the conclusion which he reached that this fund thus paid to the executors became again a portion of the residuary estate from which it had been originally taken, and should be divided among the residuary legatees other than the trustees to whom two-sixths of the estate was given by the 4th clause of the second codicil. The testator gave several very large legacies by his will. After those were paid there was left a considerable residue of his estate. This he undertook to dispose of by the 7th clause of his will which commences, “ All the rest, residue and remainder of my estate, both real and personal, I direct to be divided into six equal parts.” There is no provision anywhere in the will for a division of the residuary estate or any portion of it into less than six parts. Whatever the executors had as residuum was to be divided into six parts by the express terms of the will and they had no more right to divide it into four parts and give it to four persons among the residuary legatees, than they had to refuse to divide it at all. It made no difference, clearly, for the purposes of the will as to funds to which they were originally entitled, whether they were divided all at one time or from time to time as they came into the possession of the executors. In either case, if they constituted a portion of the residuary estate, -the testator positively directed what should be done with them and that was to divide them into six parts and to dispose of the parts as he directed in his will. It is very true that the presumption is that he did not intend to die intestate as to any portion of his estate, and such is the presumption in every case where a testator disposes by a residuary clause of all property *165not otherwise disposed of. When that residuary clause had been carried into effect by the division of the estate included in it into six parts, two of which were held in trust under the 4th subdivision of the second codicil, they were disposed of. They went out of the hands of the executors. The residuary estate had been ascertained and the amount of each share taken away from the executors and vested in those persons to whom the will gave it; so that the executors had no further concern with it. They performed their duty just as the will directed them to do. The testator probably had no idea that any of the income of the trust estate for the benefit of his nephews would come back into the hands of the executors. If he had, it is quite probable that he would have taken steps to dispose of it, but the will will be searched in vain for any direction by which the executors have any power to dispose of that income as such or any right to dispose of it except as a portion of the residuary estate, and that had ceased to exist and been disposed of before this fund came into existence. It was clearly, therefore, a portion of the estate which was not disposed of by the will, and as such in my judgment it devolved upon the next of kin of the testator as not disposed of. (Beckman v. Bonsor, 23 N. Y. 298, 312.) I can find nothing to take this fund out of the general rule. The fact that in a certain contingency the bequests of two separate shares of the residue might fail, and that the testator, in view of that possibility, directed that they should fall back into and become a part and parcel of the residue of his estate without in terms giving them to the other persons who by the will were to share in the residue in fixed proportions, does not in my judgment affect the construction of the will as to the matter now under discussion. It is unnecessary to consider here what would become of either of those shares in case the gift by the executor failed, but I am quite clear that those shares would be undisposed of and would go to the next of kin; because it cannot be deemed that the testator intended, after having disposed of the rest, residue and remainder of his estate, by dividing it into shares and specifically designating the person who should take each share, to give to that person as a portion of the same residue by the same devise something in addition to what the .clause had already given him. If he had intended that the gift of those two shares having failed, they should go to the other persons *166entitled to a fixed portion of the residuary estate, he undoubtedly would have said so. The fact is that the provision in the 7th clause dividing the residue of the estate into six equal parts, and giving directions as to each one of those parts, is not in any sense a residuary clause, the object of which is to take everything which the testator has not already disposed of and give it to some one finally. The property given by this clause is not finally disposed of, hut both in the 7th and 8th clauses of the will and in the 4th clause of the second codicil, which disposes of two shares of this so-called residuary estate, the testator has made it possible that the gifts should lapse, and he has taken no steps to provide for them afterward. The income which accrued before the 27th day of July, 1892, is clearly in that situation, and, therefore, belongs to the next of kin of the testator.

In all other respects than this I concur with the judgment of Mr. Justice Barrett.

Van Brunt, P. J., concurred.

Judgment modified as indicated in opinion of Barrett, J., and as so modified affirmed, without costs.

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