139 N.Y.S. 192 | N.Y. App. Div. | 1913
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
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 tinder 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 trtist 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.