#### Mabel T. Whittemore, Plaintiff, *v.*The Equitable Trust Company, as Successor, by Merger, to the Van Norden Trust Company, Defendant.

First Department,

May 29, 1914.

Trust for support of settlor — direction that balance, if any, be distributed to next of kin — right of settlor to revoke trust without consent of next of kin.

A deed of trust conveying securities to a trustee with power to hold the same or to convert them into other securities and directing that the trustee pay the net income to the creator of the trust for life, and apply to her use such portion of the principal as may be necessary for her support, and upon her death to distribute the principal then remaining undisposed of among her next of kin, does not create an interest in the next of kin so as to make their consent necessary to a revocation of the trust by the creator thereof, pursuant to section 33 of the Personal Property Law.

It is immaterial that the creator of the trust did not direct the trustee to deliver the balance of the property upon her death to her administrator.

A living person has no next of kin, and a possible interest as an heir or next of kin of such person is not descendible, devisable or assignable, and, hence, does not create even a contingent interest.

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

*Samuel Ecker,*for the plaintiff.

*Robert H. Strahan,*for the defendant.

Laughlin, J.:

On the 29th day of December, 1902, the plaintiff as party of the first part and the Van Norden Trust Company as party of the second part, executed an agreement in writing, under seal and duly acknowledged, whereby the plaintiff assigned and transferred to the trust company certain securities consisting of railroad bonds and certain capital stock of the aggregate par value of $21,000, upon trust to hold the securities and any securities into which they might be converted as a trust fund subject to trusts to pay the net income to the plaintiff, or to apply the same to her use, so long as she should live, and to *608pay over to her, or apply to her use, such portion of the principal “ as may in the opinion of the party of the second part he necessary for the support of the party of the first part in addition to such. income and profits, and upon her death *to distribute*the principal of said trust fund then remaining undisposed of hereunder among her next of kin.” The trust company was expressly authorized to sell all or any part of the securities and invest the proceeds, and in so doing to exercise its own discretion without reference to any law regulating the investments of trustees, and to deduct from the income or principal its reasonable expenses and disbursements and its compensation, the rate of which was therein prescribed. The deed of trust contained no express reservation of power of revocation. The trust company expressly acknowledged the receipt of the securities and accepted the trust. The defendant is the successor by merger of the Van Norden Trust Company. On the 3d day of April, 1914, the plaintiff attempted to revoke the trust pursuant to the provisions of section 23 of the Personal Property Law (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], added by Laws of 1909, chap. 247) by serving upon the defendant a formal notice in writing duly acknowledged describing the original trust agreement and demanding that it turn over and deliver to her attorney the securities or trust fund held by it pursuant to said trust agreement, together with all accumulations of interest and .income arising therefrom. The trust company declined to comply with the request, and thereupon and on the 8th day of April, 1914, this submission was agreed upon in due form, and it is therein recited that “the present next of kin of the plaintiff are ” a brother and sister therein named, both of the city of Fishkill-on-the-Hudson, and that they are of full age and sound mind.

The learned counsel for the defendant does not contend that the trust is irrevocable for the reason that it cannot be determined until the death of the plaintiff who will be her next of kin; but he contends that the consent of the brother and sister of the plaintiff to the revocation of the trust is necessary, for the reason that if the trust were presently terminated by the death of the plaintiff they would be her next of kin and *609entitled to take the remainder. The theory on which this argument is based, according to the submission, is that the brother and sister now have a beneficial interest in the deed of trust, and according to the brief that they have a contingent interest in the remainder. Section 23 of the Personal Property Law, which has been sustained as a valid retroactive enactment (H*oskin*v. *Long Island Loan & Trust Co.,*139 App. Div. 258; affd. on opinion below, 203 N. Y. 588; *Sperry*v. *Farmers' Loan & Trust Co.,*154 App. Div. 447), provides as follows: 11 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.” The determination of the question as to who are beneficially interested in a trust necessarily requires a' construction of the deed of trust, and where the settlor of the trust and the trustee are the only parties thereto, the construction depends upon the intention of the settlor. It is quite evident, I think, that the plaintiff did not intend by this deed of trust to give those who will be her next of kin at the time of her death a present beneficial interest in the property. She merely intended to turn over the management of her securities to the trust company for her own benefit and to relieve her of the responsibility of looking after them, collecting the income, selling when advisable, and reinvesting. She reserved to herself, with the consent of the trustee, the right to use the entire property if necessary. It is, therefore, manifest that her sole object in creating.the trust was to provide for her own necessities and comfort during life. It is true the deed of trust contains the provision that the trustee shall upon her death *distribute*the principal of the trust fund then remaining among her next of kin; but I think no particular significance is to be attached to that provision. It may have been thought that without some provision of the kind the trust company would take the remainder; and the provision, I think, was inserted merely as a direction to the trust company *610with respect to disposing of the property after her death, and she directed that it be distributed as the law provides for the distribution of the property of an intestate. Nor do I think any significance is to be attached to the fact that she did not direct that the trustee deliver it to her administrator. She probably had no intention of leaving debts and supposed that her property could be distributed in this manner without other administration. There could be no purpose in directing the trustee to distribute it among her next of kin, rather than deliver it to her administrator, for if she left debts property held under such a trust to the extent of her interest would be subject thereto (Pers. Prop. Law, § 34; see, also, *Schenck*v. *Barnes,*156 N. Y. 316), and I think she intended to retain an interest and had an interest in all of it. Moreover, a living person has no next of kin; and a *possible*interest as an heir or one of the next of kin of a living person is not descendible, devisable or assignable, and, therefore, there is no one who has even a contingent interest in the property as the next of kin of the settlor of the trust. *(Robinson*v. *N. Y. Life Ins. & Trust Co., 75*Misc. Rep. 361; *National Park Bank*v. *Billings,*144 App. Div. 536, 540; affd., 203 N. Y. 556. See, also, *Sperry*v. *Farmers’ Loan & Trust Co.,*154 App. Div. 447; *Hoskin*v. *Long Island Loan & Trust Co.,*139 id. 258; affd., 203 N. Y. 588.)

It follows that plaintiff is entitled to judgment revoking the deed of trust and directing defendant to deliver to her the securities and the proceeds and accumulations thereof in its possession upon payment of its lawful commissions and expenses.

Ingraham, P. J., Clarke, Scott and Dowling, *JJ.,*concurred.

Judgment ordered for plaintiff as indicated in opinion. Order to be settled on notice.