Kuntze v. Guaranty Trust Co.

Untermyer, J. The trust agreement, the revocation of which the plaintiffs seek in this action, is for a term of ten years. It provides for the payment of the income to the donor’s mother during the period of the trust. If the donor’s mother predeceases him during that period, the trust terminates and the principal, together with any accrued income, is to be paid to the donor. If the donor dies before his mother and without issue during the term of the trust the principal is to be “ divided equally, share and share alike, between donor’s mother and donor’s wife.” On account of this provision the trustee rejected notice of revocation executed only by the donor and his mother, who are the plaintiffs in this action and who claim to be the only persons “ beneficially interested ” in the trust within the meaning of section 23 of the Personal Property Law. The provision whereby, upon the death of the donor without issue during the trust term, the corpus of the trust is to be equally divided between the donor’s mother and his wife, makes the donor’s wife a person “ beneficially interested ” in the trust whose consent to revocation is required by section 23 of the Personal Property Law. The donor did more than establish a trust during the life of his mother. He made provision for his wife in case he should predecease his mother before the expiration of the term of the trust. Although the wife’s interest is postponed until the occurrence of that contingency — a contingency which, it is true, may never be realized — it constitutes none the less an interest in the principal of the trust. (Nellis v. Nellis, 99 N. Y. 505.) Upon the creation of the trust the wife acquired instantly “ a vested right to a contingent estate ” (Chaplin Suspension of Power of Alienation [3d ed.], § 196) which would vest in possession upon the happening of the contingency. If the donor should now die, his mother being still alive and there being no issue, the wife would immediately be entitled to one-half of the principal of the trust. That right constitutes an existing beneficial interest of which she cannot be divested without her consent. (Cazzani v. Title Guarantee & Trust Co., 175 App. Div. 369; affd., 220 N. Y. 683.) Indeed, in Whittemore v. Equitable Trust Co. (250 N. Y. 298) the consent of persons entitled to a more remote and uncertain interest was held to be necessary to the revocation of the trust. [9] The decisions relied on by the justice at Special Term (Franklin v. Chatham Phenix National Bank & Trust Co., 234 App Div. 369; Berlenbach v. Chemical Bank & Trust Co., 235 id. 170; affd., 260 N. Y. 539 and Stella v. N. Y. Trust Co., 224 App. Div. 50) are readily distinguishable. The interest asserted in each of those cases consisted of a possible interest in the estate of the donor by appointment or as next of kin. Since, of course, a living person has neither estate nor next of kin (Doctor v. Hughes, 225 N. Y. 305; Stella v. N. Y. Trust Co., supra) who have any present interest in his property, there were no existing persons “ beneficially interested ” in the trust. A present gift of a contingent interest is to be distinguished from a mere hope of succession. The order appealed from should be reversed, with twenty dollars costs and disbursements, and the motion granted. Finch, P. J., and O’Malley, J., concur; Merrell and Martin, JJ., dissent and vote for affirmance.