Opinion
May 3, 1943.
In an action to cancel, set aside and declare void a trust agreement made by the decedent Mildred T. Burns, judgment dismissing the complaint reversed on the law and the facts, with costs, and judgment is granted in favor of plaintiff canceling, setting aside and declaring illusory the trust agreement dated August 22, 1938, directing respondents Turnbull and Hutchinson to deliver to the plaintiff all the property included in the alleged trust agreement, or its proceeds, together with all rents, profits and income derived therefrom, and requiring them to account therefor, with costs. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. Under the alleged trust agreement executed eleven weeks before the death of the settlor, she retained complete control of the trust property during her lifetime. She was designated as one of the two trustees; retained the right to appoint trustees and to remove them without limitation; retained exclusive control over the management of the trust funds, including the right to substitute and replace investments; and also retained the right to amend or revoke the trust. The transfers to trustees under such an agreement were illusory. ( Newman v. Dore, 275 N.Y. 371.) In view of the above decision the appeal from the order denying plaintiff's motion to vacate the judgment and for other relief is dismissed, without costs. Settle order on notice within ten days from the date of this decision. Carswell, Johnston, Adel, Taylor and Lewis, JJ., concur.