In re the Accounting of Freund , 1 A.D.2d 884 ( 1956 )

Decree, so far as appealed from, affirmed, with costs to all parties appearing and filing briefs herein payable out of the estate. No opinion. Concur — Botein, Rabin, Cox and Frank, JJ.; Peek, P. J., dissents and votes to reverse in the following memorandum: I find in the context of this will and testamentary pattern persuasive evidence that the testator intended the principal of the trust to vest in the remaindermen. The clause in question is ambiguous. It certainly is not a clear provision requiring survivorship of the life tenants for the remaindermen to take, and it is at least susceptible of an interpretation, which I find more consistent with the testamentary pattern, that the clause was concerned with survivorship between the remaindermen rather than with survivorship of the remaindermen over the life tenants. I would construe the clause as vesting the remaindermen subject to divestment, in the event that one survived the life tenants and the other did not, of the share of the one who did not survive in favor of the one who did.