
    Ida Harriet Sperry, Plaintiff, v. The Farmers’ Loan and Trust Company and Frederic P. Sperry, Individually and as Surviving Trustees under a Certain Deed of Trust Made by Ida Harriet Sperry, Bearing Date October 8, 1902, Defendants.
    First Department,
    January 3, 1913.
    Trust — partial revocation pursuant to section 23 of the Personal Property Law — said section retroactive.
    The owner of an undivided interest in an estate executed a deed of trust conveying all the property bequeathed to her to certain trustees upon two trusts and a power in trust. The two trusts were: First, to pay any and all debts of • the owner, which has been done, and the second, 
      to receive all the rents and profits of the assigned estate, and to pay the same, less the trustees’ charges, and expenses, to the owner for life. The power in trust was to transfer and convey the principal of said estate, and the balance of the income remaining in their hands, upon the death of the owner, “ to such person or persons and in such manner as maybe designated in the last will and testament ” of said owner. The corpus of the fund in the hands of the trustees, except the home occupied by the owner, was in contemplation of law personal property.
    Held, that the plaintiff, being the sole beneficiary of the trust, is entitled, under section 23 of the Personal Property Law to revoke said trust to the extent of $10,000, and to require the trustees to pay over such sum.
    Said section of the Personal Property Law is by its terms expressly made retroactive.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    On or about October 8, 1902, the plaintiff was the owner of an undivided .interest in the estate of Hosea B. Perkins, deceased, and while such owner executed a document, denominated a deed of trust, which she delivered to Ethan Allen, Frederic P. Sperry and the Farmers’ Loan and Trust Company therein designated as trustees.
    By this document plaintiff granted to said trustees all the property “real and personal to her bequeathed and devised by said Hosea B. Perkins.”
    At the time this instrument was executed and delivered the interest of plaintiff in the estate of said Hosea B. Perkins, deceased,, was an undivided interest of the valué of at least $48,000 in certain real'estate, and an undivided interest of the value of at least $2,000 in certain personal property of which said Perkins had died seized and possessed. The will of said Perkins contained a clause authorizing his executors to sell all • or any part of his real property. Acting under this power the ' executors converted into cash all of the undivided interest of the plaintiff in the estate, both real and personal, of said Perkins, and paid over the proceeds, amounting in all to $51,645.55, to the trustees named in the above-mentioned deed of. trust.
    Ethan Allen, one of the trustees named, had died, and defendants, the sole surviving trustees, now hold, under the said deed of trust, personal property, to wit, bonds and mortgages to the value of $33,000 and cash in the sum of $158,8.7, as well as certain real estate now used by plaintiff as a residence, and purchased by defendants as trustees pursuant to one of the provisions of the deed of trust, of the value of not less than $16,500.
    The trust agreement, or deed of trust as we have termed it for convenience, conveyed the property described therein to the trustees named upon two trusts and a power in trust.
    The two trusts were:- First, to pay any and all debts of the plaintiff which had accrued prior to the execution of the agreement. This trust had been fully executed, all of said debts having been paid. Secondly, to receive all the rents, issues and profits of the assigned estate, and to pay the same, less the trustees’ charges and expenses, to the plaintiff for her natural life. The power in trust was to transfer and convey the principal of said estate, and the balance of the income remaining in their hands, upon the death of the plaintiff, “to such person or persons and in such manner as may be designated in the last will and testament ” of said plaintiff.
    The plaintiff, claiming to be the sole beneficiary of the trust created by said deed of trust, has served upon the surviving trustees, defendants herein, a notice that “pursuant to § 23 of the Personal Property Law and other statutes in such case made and provided I do hereby revoke the said trust created by the said deed of trust to the extent of ten thousand dollars ($10,000) of such personal property, and as such beneficiary I hereby consent to such revocation, and I accordingly require of the said trustees that they forthwith deliver to me,, free from said trust, bonds and mortgages or other similar personal securities or cash of the amount and value of ten thousand dollars.”
    The trustees have declined to accede to such request, and have refused and still refuse to deliver over to plaintiff any part of the principal of the trust fund aforesaid, and still retain the entire principal thereof.
    
      Clarence De Witt Rogers, for the plaintiff.
    
      Frederick Geller, for the defendants.
   Scott, J.:

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

after her death must remain unknown and legally non-existent. The deed makes no provision as to the disposition of the estate in case the plaintiff fails to designate the person or persons to, take it after her death. Of course in such an event the property would go, by operation of law, to her heirs or next of kin, but they would take by descent and not by purchase — by virtue of their relationship to the plaintiff, and not by virtue of or under any provision of the deed of trust. There is, therefore, no person now existent and who can be identified, save the plaintiff, who can in any proper sense be termed a beneficiary under the deed of trust, because there is no person who can claim to be entitled, after plaintiff’s death, to receive the fund under the terms of the trust nor can there ever be such person except by the voluntary act of the plaintiff in making an appointment by her last will. - ■ In this respect the trust under consideration differs radically from that considered in Genet v. Hunt (113 N. Y. 158). In that case, as in this, there was a conveyance to trustees of property which they were to hold during the joint lives of the creator of the trust and her husband, paying the income over to her or him, and at the death of the survivor were to convey and pay over the corpus of the trust estate to her appointees named in her last will and testament. The case differed from the present, however, in that the trust deed also provided that in default of an appointment, the trustees were directed to pay over and convey the corpus of the estate “ unto such person or persons living at the death of the said party of the first part [the creator of the trust], and being her heir or heirs at law, as would be entitled to take the same by descent from her.” It was held that the remaindermen, in case the creator of the trust failed to make a valid appointment, would take, under the trust deed, by purchase and not by descent, notwithstanding they might be, although not necessarily so, the same persons who would have taken in. case both of intestacy and of a failure to make a valid appointment. In other words, the deed of trust itself pointed out'persons who would inevitably become entitled to the. property at the death of the creator of the trust despite anything she might do or might omit to do. It was in view of this feature of the trust dee'd that it was remarked in Hoskin v. Long Island Loan & Trust Go. (139 App. Div. 258, 261; affd. on -opinion below, 203 N. Y. 588) that the question at issue in Genet v. Hunt was whether Mrs. Eiggs, the creator of the trust, had reserved to herself an absolute jus disponendi or only a.power of appointment: It was held that she had reserved only the latter, because she had specifically provided against every contingency, and had pointed out who should take the corpus of the estate in case no appointment was made. She had thus created rights in- the remainder which she was powerless by action or non-action to destroy.

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.  