287 N.Y. 500 | NY | 1942
In January, 1929, the plaintiff executed a deed of trust and delivered the deed with the property described therein to Title Guarantee and Trust Company, the trustee named in the deed. The trustee thereafter entered upon the discharge of its duties. The deed of trust provided that the income should be applied for the benefit of the daughter of the settlor, Irene M. Hanlon, or paid over to her during her minority, and that the principal was to be paid to the daughter upon the death of the settlor. In the event that the daughter should predecease the settlor, then, the deed provided, that upon the death of the settlor the principal should be paid over to P. Edward Hanlon, the settlor's son, "if living, but if dead, then to the lawful issue of said P. Edward Hanlon, if any, and if there shall be no such issue, then to the legal representatives of the party of the first part [the settlor]."
The plaintiff now seeks to revoke the trust which she has created. Since the settlor did not in the deed of trust reserve a power to revoke, she can do so only "upon the written consent of all the persons beneficially interested," as provided in section 23 of the Personal Property Law (Cons. Laws, ch. 41). The settlor's daughter and son, Irene M. Hanlon and P. Edward Hanlon, have executed written consents. If they had children now living, such children would have a contingent interest in the trust fund and the settlor could not revoke the trust without their consent. (Schoellkopf v. Marine Trust Co.,
By a divided court the Appellate Division has held that the unborn children who at birth would be entitled to a contingent interest are not persons beneficially interested. The same court had so held in Cram v. Walker (
There can be no doubt that at times living persons may inlitigation represent unborn children in defense of rights in which the living and the unborn have a common interest. *504 Here the living claim the right by voluntary deed to destroy the contingent estate of unborn children. In the case of Kent v.Church of St. Michael (supra, p. 17) the court expressly denied to them such right, saying, "The trustees, children and grandchildren of Mrs. Stewart could not cut off or affect the title in the land of unborn grandchildren by any conveyance inpais." Here the contingent estate of the unborn grandchildren is created by deed of the settlor. If the contingency should arise upon which an estate would vest in them they would take as purchasers and not by representation through their parent. It is clear that in the absence of statute the written consent of the parent cannot bind his unborn children.
The question remains whether consent of the unborn children, who in some contingency might become entitled to an estate or interest in the trust fund, is required by the statute in order to permit a settlor to revoke a trust deed and destroy the unborn child's contingent estate created by the deed. The words "persons beneficially interested" must be strained beyond their usual and natural meaning if construed to include those not in being who might in some contingency be entitled to an estate. If the Legislature intended to permit a trust deed to be revoked only where every person now living who has a beneficial interest, vested or contingent, consents and no person born thereafter could in any possibility become entitled to an estate, then the Legislature has used words which conceal rather than make manifest that purpose.
In the stipulation of agreed facts it is stated or contended that the trust deed "provides for contingent remainders to the lawful issue of defendants Irene Marie Hanlon Farrell and P. Edward Hanlon." There is no statement that either party contends that the trust deed provides for a contingent remainder to the "legal representatives" of the settlor. We think that no such remainder was created. It is at times difficult to draw the line which marks the distinction between the reservation by a settlor of a reversion and the creation by the settlor of a contingent *505
remainder to the settlor's personal representatives or heirs. (Doctor v. Hughes,
The judgment should be affirmed, without costs.
LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Judgment affirmed.