Order entered December 30, 1966, insofar as appealed from, unanimously affirmed, with $50 costs and disbursements to all parties filing briefs, payable out of the trust estate.
Concur -- Stevens, J. P., Eager, Capozzoli and Bastow, JJ.
Special Term determined correctly that appellant, for the purposes of this trust, is not an issue or descendant of George Peabody. Appellant, the natural son of Cornelia Romilly, daughter of the actual grantor of the trust, and the adopted son of George Peabody, son of the grantor, is not entitled to take an additional share as a son of George Peabody by virtue of such adoption. The entire language of the trust indenture supports the determination made at Special Term. Stephen Peabody, the grantor, expressly provided that a share or shares of the income should, under certain conditions, be paid over to the children or issue of the children of Stephen Peabody, per stirpes and not per capita. The only person expressly excluded by name from a share in the profits, income, etc., was George Peabody, Jr., a grandson. It should be noted that there was no such exclusion of any issue or descendants of George Peabody, Jr. In fact the trust instrument notes that when reference is made to descendants of Stephen Peabody "it shall be taken to signify the descendants referred to who are living at the time of the accrual of the right to receive the share". The command of the instrument is designed to treat George Peabody, Jr., as if he were dead by its terms of express exclusion. But it is evident from the instrument as a whole that there was no intent to exclude his issue. Accordingly, when the time of accrual occurred as to the descendants of the grantor, the children of George Peabody, Jr., were competent to take.