concurrence">Ingraham, J.

(concurring):

I concur with Mr. Justice Laughlin in the construction given to the 7th clause of the will in question, as it seems to me that the intention of the testator is clearly expressed". The property devised ' and bequeathed to the executors in trust is to be divided “ into such number of equal shares as shall be equal to the number of children who shall survive me, and of my children, who shall have died before me leaving issue who shall survive me, and set apart one of such equal shares for each of my children who shall survive me, and one of such equal shares for the "issue of each child of mine who shall have died before me, leaving issue me surviving.” The trustees were then directed to hold one share for each of his surviving children, to collect and redeive the rents> issues, income and profits from such share and to apply the net income to the use of the person for whom such share shall be held during the life of such person, or until such person arrives at the age of twenty-five years, and upon the arrival of such person at the age of twenty-five years, to convey or pay over one equal fourth part of the capital of such trust estate, to receive the income upon the remaining three-fourths and to pay it to the person for whom the trust was held until such person arrived at the age of thirty years, when there was to be conveyed and paid to such person one-third of the capital of the trust estate then remaining, and to hold the balance of the trust during the lifetime of the person for whom the trust was held and to pay the income and profits to such person during his life. , It is then provided that “ upon the death of such person in trust for whom such trust estate shall be held, to convey, transfer, deliver' and pay over the capital of such trust estate as it shall then exist with all gains and increase of capital thereof, if any, in fee simple and absolutely * * * to the issue then surviving of such person in trust for whom such trust estate shall have been held, in equal shares.” Thus, upon’ the death of the person in trust for whom the share is held, the capital of such trust estate, “ as it shall then exist,” that is, at the. time of distribution, *541shall beq>aid over to the issue. If the testator’s child survived him and died under twenty-five years of age, the direction to pay to that child a quarter of the estate upon its arriving at that age manifestly could not be complied with. At that time the capital of such trust estate as it would then exist would be all of the share of the testator’s residuary estate which was held in trust for that child. It had not then been depleted by the payment which was to be made when the child arrived at the age of twenty-five years. There is no direct devise or bequest of any part of the testator’s property to any of his surviving children. ' The sole right of a child to any part of the capital of the estate is contained in the direction to the executors to pay to a surviving child one undivided quarter of the share held in trust for that child upon his arriving at the age of twenty-five years and thirty years respectively, and it seems to have been clearly the intention of the testator that upon the death of either" of his. surviving children the capital of the share held in trust, for him was to vest absolutely, in the absence of the exercise of a power of appointment, in the issue of the child so dying. The terms of the will negative the idea that the testator intended to vest absolutely in either of his surviving children any portion of the estate held in trust'for them until they arrive at the age of twenty-five years. The devise or bequest over took effect upon the death of a surviving child, and the property thus devised or bequeathed was the capital of- the share held in trust for that child at the time of his death, and to carry this intention into effect the judgment should be modified accordingly.

Patterson, J., concurred.

Judgment modified as directed in opinion, with costs.to guardian ad litem payable out of the fund.

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