Opinion
January 3, 1913.
Clarence De Witt Rogers, for the plaintiff.
Frederick Geller, for the defendants.
We entertain no doubt that the corpus of the trust fund in the hands of the trustees, excepting the house occupied by plaintiff, is in contemplation of law personal property. It is true, as stated in the submission, that when the deed of trust was executed plaintiff's undivided interest in the estate of Hosea B. Perkins, deceased, was represented mainly by real estate, but the action of the executors in converting his realty into cash operated as a legal as well as an actual conversion, so that what was paid over to the trustees was, when it came into their hands, personal property, and except as to the amount invested in the house, so remains. As the plaintiff seeks to release from the trust only a part of the personal property so held, we are justified in treating the questions raised by the submission only with reference to a trust of personal property.
Section 23 of the Personal Property Law reads as follows: "§ 23. Revocation of trusts upon consent of all persons interested. Upon the written consent of all the persons beneficially interested in a trust in personal property or any part thereof heretofore or hereafter created, the creator of such trust may revoke the same as to the whole or such part thereof, and thereupon the estate of the trustee shall cease in the whole or such part thereof."
Although this section was enacted after the creation of the trust now under consideration (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], § 23, added by Laws of 1909, chap. 247), it is by its terms expressly made retroactive. It is clear that the plaintiff is a person "beneficially interested" in the trust, and the question we have to consider is whether any other person is also beneficially interested within the meaning of the statute. If no other person is so interested and the plaintiff is the only person interested her consent alone is necessary to the revocation of the trust.
There certainly is no other person now in existence or who can now be identified who is so interested either presently or in future. Under the terms of the deed of trust the corpus of the trust estate is to go, at plaintiff's death, to the appointee or appointees named in her last will. Until she dies, therefore, leaving a last will, the person or persons to receive the property after her death must remain unknown and legally non-existent. The deed makes no provision as to the disposition of the estate in case the plaintiff fails to designate the person or persons to take it after her death. Of course in such an event the property would go, by operation of law, to her heirs or next of kin, but they would take by descent and not by purchase — by virtue of their relationship to the plaintiff, and not by virtue of or under any provision of the deed of trust. There is, therefore, no person now existent and who can be identified, save the plaintiff, who can in any proper sense be termed a beneficiary under the deed of trust, because there is no person who can claim to be entitled, after plaintiff's death, to receive the fund under the terms of the trust nor can there ever be such person except by the voluntary act of the plaintiff in making an appointment by her last will. In this respect the trust under consideration differs radically from that considered in Genet v. Hunt ( 113 N.Y. 158). In that case, as in this, there was a conveyance to trustees of property which they were to hold during the joint lives of the creator of the trust and her husband, paying the income over to her or him, and at the death of the survivor were to convey and pay over the corpus of the trust estate to her appointees named in her last will and testament. The case differed from the present, however, in that the trust deed also provided that in default of an appointment, the trustees were directed to pay over and convey the corpus of the estate "unto such person or persons living at the death of the said party of the first part [the creator of the trust], and being her heir or heirs at law, as would be entitled to take the same by descent from her." It was held that the remaindermen, in case the creator of the trust failed to make a valid appointment, would take, under the trust deed, by purchase and not by descent, notwithstanding they might be, although not necessarily so, the same persons who would have taken in case both of intestacy and of a failure to make a valid appointment. In other words, the deed of trust itself pointed out persons who would inevitably become entitled to the property at the death of the creator of the trust despite anything she might do or might omit to do. It was in view of this feature of the trust deed that it was remarked in Hoskin v. Long Island Loan Trust Co.
( 139 App. Div. 258, 261; affd. on opinion below, 203 N.Y. 588) that the question at issue in Genet v. Hunt was whether Mrs. Riggs, the creator of the trust, had reserved to herself an absolute jus disponendi or only a power of appointment. It was held that she had reserved only the latter, because she had specifically provided against every contingency, and had pointed out who should take the corpus of the estate in case no appointment was made. She had thus created rights in the remainder which she was powerless by action or non-action to destroy.
The exact contrary is the case here. No one is entitled to be appointed to receive the corpus, and no one ever can receive it under the terms of the trust deed unless the plaintiff of her own free will elects to appoint them to be the recipients. She certainly can renounce the power to do that which she is under no compulsion ever to do, and if she renounces the trust as to the $10,000 which she now seeks to withdraw from its operation, she will have renounced, as to the sum so withdrawn, the power to appoint a person or persons to receive it after her death. As to those who might become entitled to receive the corpus in default of an appointment they will take, as has already been said, not at all under the trust deed, but directly from the plaintiff by virtue of their relationship to her. In this respect the trust under consideration is much like that considered in Hoskin v. Long Island Loan Trust Co. ( supra). We are, therefore, of the opinion that the case is brought directly within the terms of the statute above quoted. Having thus concluded, it is unnecessary to discuss the other questions argued upon the briefs as to the effect of other statutes, and as to the title to the real estate held by the trustees.
It follows that the plaintiff is entitled to judgment as prayed for in the submission, with costs and disbursements payable out of the trust estate.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and DOWLING, JJ., concurred.
Judgment ordered for plaintiff as prayed for in submission, with costs payable out of trust estate. Order to be settled on notice.