In re Cerchia

279 A.D. 734, 108 N.Y.S.2d 753, 1951 N.Y. App. Div. LEXIS 3595

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1951
• Status: Published

Opinion

Per Curiam.

The writing relied upon as creating a trust of the securities does not accomplish that purpose. It manifests no intention on the part of the settlor to impose any enforcible duties upon himself as trustee. In the absence of such an intention no trust is created (Restatement, Trusts, § 25).

Analyzing the writing we find that the settlor retained exclusive control over the disposition of the income. The securities, comprising the corpus of the trust, are to be sold only if he, in Ms absolute discretion, deems it advisable. In the event of a sale there is no obligation to apply the proceeds for the benefit of the named beneficiary. No enforcible interest in the fund is created unless and until the settlor dies without revoking the trust. Such a writing is testamentary in nature.

Accordingly, the order appealed from should be reversed, with $20 costs and disbursements, and petitioner’s motion denied, and the proceeding to compel an accounting dismissed.

Peck, P. J., Glennon, Dore, Cohn and Callahan, JJ., concur.

Order unanimously reversed, with $20 costs and disbursements, petitioner’s motion denied and the proceeding to compel an accounting dismissed. Settle order on notice.