Gage v. Irving Bank & Trust Co.

130 Misc. 890, 225 N.Y.S. 481, 1927 N.Y. Misc. LEXIS 1343

Opinion

Carswell, J.

The distinction between the cases that defendant relies upon and those upon which plaintiff relies seems to be clear. Where the declaration of trust purports to accord property to persons who would not take in the event of intestacy of the grantor, for whose benefit the trust is otherwise created, then such persons become possessed of a present beneficial interest in the trust, without whose consent the trust may not be revoked. But where the persons who are to take the property after the death of the grantor for whose initial benefit the trust is created are individuals who would take in the event of that person dying intestate, then those individuals who would so take do not have a present beneficial interest in the trust that entitles them to resist a revocation of the trust, and their consent to the revocation of the trust is not necessary under section 23 of the Personal Property Law (as added by Laws of 1909, chap. 247). It is undisputed in the evidence herein that the only persons in being concerned in the matter herein are the grantor — the plaintiff herein — and three minor children. There is no evidence of any other person being concerned. That being so, the persons who would take in the event of the death of the plaintiff are the three children and the declaration of trust provides for the same individuals taking the property upon the death of the plaintiff who would take in the event he died intestate. That being the state of this record and the undisputed facts the line of cases that permits of a revocation of a trust where those who would take under the declaration of trust are the same as those who would take by operation of law, in the event of intestacy, applies herein (Cruger v. Union Trust Co., 173 App. Div. 797, 804), and the trust is revocable by the plaintiff without the consent of the children, who have not acquired a present beneficial interest entitling them to assert opposition to such revocation. Judgment for the plaintiff. Settle findings on notice.