Hussey v. City Bank Farmers Trust Co.

O’Malley, J. The essential facts contained in the submission are set forth in the opinion of Mr. Justice Martin. I am unable to agree with his conclusion and am-of opinion that the defendant should have judgment. The case is in no sense distinguishable in principle from the decision of the Court of Appeals in Whittemore v. Equitable Trust Co. (250 N. Y. 298). In that case the deed creating a trust in personal property for the life of a beneficiary provided that at the death of the life beneficiary the trustee was to pay the principal of the estate to the settlor if he be alive, or if he be dead, to pay it as directed in his last will and testament, or if he left no will, to pay it to the persons who would then take under the Statute of Distributions. The court held that the trust agreement was to be interpreted as it read; that the minor children of the settlor were given a vested remainder subject only to divestment by the last will and testament of the settlor, and that it could not be divested by the deed or assignment of the settlor. It was further held that the settlor did not simply create a life estate and nothing more, reserving to himself the balance of the interest in the property, but that he made full and formal distribution of the principal in case of his death. The words used, it was held, indicated an intention to make a remainder to the children, subject to change by the settlor’s will, and that he'did something more than merely to set up a trust for a life beneficiary for he disposed of the property at the termination of the life interest in case of his previous death. I am of opinion, therefore, that under the trust deed in the case before us those parties who, it is stipulated, would be the next of [119] kin if the settlor should now die, receive a vested interest which may not be divested without their consent. This conclusion is in conformity with the decision of this court in Corbett v. Bank of New York & Trust Co. (229 App. Div. 570). In that case, Whittemore v. Equitable Trust Co. (supra) was also interpreted as granting a remainder interest to those who would have" been next of kin at the time the trust was sought to be revoked. This court permitted such revocation only because all of such persons having the vested remainder had consented to such revocation. It is immaterial that the trust agreement provides that the next of kin of the settlor shall be determined by the laws of the State where he might reside at the time of his death. The rights of the parties in the premises are to be determined as of the date of the application for revocation. The settlor now resides in the State of Massachusetts and it is stipulated that the parties not consenting would be next of kin at the present time in such jurisdiction. It follows, therefore, that judgment should be directed for the defendant, with costs. Finch, P. J., Merrell and Townley, JJ., concur; Martin, J., dissents.