91 N.Y.S. 1065 | N.Y. App. Div. | 1905
The sole question involved in this action is the determination of the present ownership of the fee of the. premises sought to be partitioned, . The appellants claim the fee under a deed of trust executed-by their mother, Henrietta E. Gibbins, to one Lowry. The respond-.. ,-ent and .those claiming under him contend that this deed- of trust , was nullified by reconveyance from Lowry to Mrs. Gibbins and that - the fee came to them from the executor of Mrs. Gibhins. Upon the 8th day of July, 1889j Mrs. Gibbins, then being the owner of the fee • ■of the premises in question, executed a deed of trust to James. L.' Lowry, his successors and assigns, to ■ manage the property, collect its rents and profits, and pay the samé to her during her lifetime, and upon. her death to convey the said property'to such of her children in equal shares as she might leave her surviving. The. •deed of trust contained the following clause: “ But this trust is .granted and accepted, with the following reservations, conditions. . and powers, and the same are considerations , moving the creation and acceptance of this trust:
“First. The party of. the first 'part reserves to herself the right and power to revoke and terminate the trust hereby granted, but -only by and with the consent of - her .husband, Austin Gibbins, and) the party of the second part on receiving a notice and consent in writing revoking the said-trust executed by the party of the first . part and her said husband in the same manner as conveyances- of real •estate are required by law to- be' executed, will convey the property ' herein described to any person' or persons that may be appointed and designated in said notice and - consent and the party of the ' ' second part will thereupon be -relieved from any further liability under said trust without being; obliged to resort to 'any-court or ". officer or legal proceeding. ■ '
“/Second'. The party of the second part accepts this trust upon -the express reservation, and condition - that lie may, if he -so desires, at <*459 any time hereafter resign and surrender such trust and reconvey the property herein described to the party of the first part and without this being obliged to resort to any court or officer for leave or authority to do so, and without any legal proceeding for that purpose and that such reconveyance and resignation will entirely relieve him from any liability by reason of said trust or for said trust property after the time he resigns the same and reconveys said property.”
The deed of trust was executed by Henrietta E. Gibbins and James L. Lowry and was recorded in the clerk’s office of Hew York ■county upon the 17th day of July, 1889. When made, the appellants, three in number, were infants under the age of fourteen years ;and were and are the settlor’s only children. Austin Gibbins, the ¡husband of the creator of the trust, died January 6, 1890, without ■executing any consent for revocation. Thereafter and prior to the 4th day of August, 1891, Mrs. Gibbins married one Guldenkirch. ■On that date Lowry, the trustee named in the above deed of trust, •executed an instrument, wherein, for the consideration of one dollar paid to him, he granted and released to Mrs. Guldenkirch- the premises conveyed to him in trust. This instrument described the party of the first part as James L. Lowry, trustee for Henrietta E. Gibbins, and is signed by him as “James L. Lowry, Trustee, &c.” It was duly acknowledged and recorded on the same day. This instrument contained the following recital: “ Whereas the party of the first part desires to resign and surrender such trust and to reconvey the .premises hereinafter described to the party of the second part; and Whereas, the party of the second part hereto has notified the party of the first part that she has revoked and terminated said trust,” etc. Mrs. Guldenkirch (formerly Mrs. Gibbins) diedin April, 1897. She left a last will, which was probated in May thereafter. By the terms of this will she gave the bulk of her property in trust to her executor to pay the rénts, issues and profits therefrom to her three children, and upon the youngest one coming of age,' to transfer the property to them, share and share alike. Her executor was also given a discretionary power of sale. Under this power he executed •a conveyance of the real property herein in question upon the 30th -day of September, 1897, wherein he conveyed the fee of the premises to this plaintiff in consideration of the payment, of $10,000, and
Among the powers which may be reserved in a deed of trust, is that of the right of revocation by the settlor of , the trust. In speaking of this question it was said by Judge Finch : “But few things are better settled than that the reservation of' such a power is entirely consistent with the trust, and does not work its destruction where the rights of creditors are not involved.” (Von Hesse v. MacKaye, 136 N. Y. 114.) An abundance of authority supports-this view ( Van Cott v. Prentice, 104 N. Y. 45 ; Brown v. Spohr 87 App. Div. 522; Perry Trusts [5th ed.], § 104), and such is-the express provision of section 124 of the Real Property Law (Laws of 1896, chap. 547). The effect of the absolute power of revocation reserved by the settlor of the trust does not affect its-validity, save that as to Creditors and purchasers the settlor is still to-be deemed the absolute owner -of the estate'. (Id. § 125.) The intention of the grantor of. the power is required to be observed,, subject to- the authority of the Supreme Court to supply a defective-execution. (Id. § 152.) While section 153 of the Real Property' Law requires that the consent of a necessary person to the executian of a power must be expressed in the instrument by which the power is executed, or in a written certificate thereon, executed and acknowleged in like manner as deeds are required to be executed, yet where the act of revocation as between the parties expresses a clear intention to revoke and the rights of third persons are' in nowise affected and the trust instrument in itself does not provide in par-, . ticular form how the revocation shall be executed, an instrument, which clearly expresses -the intention to revoke and is sufficient to accomplish' such a purpose will be regarded as working such a. result, even though it be not executed in the particular form required by the statute.- (Barnard v. Gantz, 140 N. Y. 249.) ..The trust deed
• The judgment should, therefore, be affirmed, with costs.
Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ.„ concurred.
Judgment affirmed, with costs.