123 N.Y.S. 994 | N.Y. App. Div. | 1910
On January 27, 1896, Magdalena E. Schmadeke (who has since married and is‘the plaintiff Magdalena E. Hoskin) gave to defendant the sum of $25,000, and in connection therewith executed and delivered an instrument in writing by which she declared that defendant was : “ To hold and preserve the said principal sum for and during the natural life of the party of the first part (the said plaintiff), investing and reinvesting the said principal sum upon first-class securities and not in speculative stocks or enterprises, and after deducting its commissions for receiving this trust fund and .the annual commissions -for receiving and paying over the income and profits and deducting "all necessary expenses, pay
The Personal Property Law (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], § 23, added by Laws of 1909, chap. 247) contains the following provision : “ 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.” The difficulty which has existed in the way of the destruction of an active trust arose from the provisions of the law which prohibit the person entitled to the beneficial interest from assigning or in any manner disposing of the same, or the trustee from doing anything in contravention of the trust. (Graff v. Bonnett, 31 N. Y. 9; Douglas, v. Cruger, 80 id. 15; Lent v. Howard, 89 id. 169; Genet v. Hunt, 113 id. 158; Cuthbert v. Chauvet, 136
There must be judgment for the plaintiffs upon the submitted controversy, but, under the circumstances, without costs.
Woodward, Jenks, Thomas and Carr, JJ., concurred.
Judgment for plaintiffs, without costs, in accordance with the terms' of the submission..