In re the Accounting of State Bank

*530Beldock, Ughetta, Christ and Pette, JJ., concur;

dissents and votes to reverse the decree insofar as appealed from, and to remit the proceeding to the Surrogate’s Court for the making of an appropriate decree with the following memorandum: In my opinion, paragraph Fifth of the will should be construed to mean that, while upon testator’s death his brother Lee obtained a vested interest in the trust, such interest was not indefeasibly vested; and that it was divested when he died before the testator’s widow (cf. Matter of Larkin, 9 N Y 2d 88; Matter of Gulbenkian, 9 N Y 2d 363; Lyons v. Ostrander, 167 N. Y. 135). [30 Misc 2d 495.]