#### Renee Boucicault, Plaintiff, *v.*Frederic C. Leubuscher, *a*Trustee, etc., Defendant.

Supreme Court, New York Special Term,

December 23, 1924.

Trusts — action by creator of trust agreement for revocation thereof-agreement created trust for sole benefit of plaintiff until her deat when it was to terminate — estate then was to be held in trust f daughter unless executors retained therefrom funds to complete pa; ments to named legatees — if plaintiff died intestate, estate was pass under Statute of Distributions — daughter did not acquire vest< interest in trust estate — motion by plaintiff for judgment on pleadin granted.

In an action to revoke a trust agreement, plaintiff’s motion for judgment on t pleadings should be granted, where it appears that the trust was created i the sole benefit of the plaintiff until her death when it was to terminate; th at its termination the estate was to be held in trust for her daughter unless t executors of her will found it necessary to retain sufficient funds to oomph payments of certain bequests to named legatees after which they were to p the remainder to the trustee under the will for the benefit of the said daught and that if the plaintiff should die intestate or should fail by her will to dispc of the balance of her estate it should pass under the Statute of Distributio:

The daughter did not acquire such a vested interest in the trust estate as prevent a revocation of the agreement without her consent.

Motion by the plaintiff for judgment on the pleadings in ; action to revoke a trust agreement.

*Gordon S. P. Kleeberg,*for the plaintiff.

*Frederic C. Leubuscher,*attorney in person.

*Herman Joseph,*special guardian and attorney in person.

*233Levy, J.:

Motion by plaintiff for judgment on the pleadings. The action ras brought to revoke a certain trust agreement and for other elief incidental. The answer interposed sets in motion only the ssue presented by the 9th paragraph of the complaint which alleges lat such agreement is revocable and terminable at the will of le plaintiff.

The plaintiff created a trust for the benefit and use of her daughter, ad she now seeks to have the same set aside and have herself sclared the only person beneficially interested therein. The ¡fondant, Leubuscher, who by the instrument was made trustee, snies that the trust thus created was revocable and asserts that Le *cestui que trust*possesses a beneficial interest of which she innot now be deprived by attempted revocation, her right having ;en made absolute upon the creation of the trust. A question of w is thus presented and its determination depends upon the instruction of the instrument by which the trust was thus eated.

The trust agreement shows that the trustee named therein was pay to the plaintiff during her natural life all the interest cruing from the trust, and upon- her death the trust was to múñate and the balance of the estate so held in trust was to be rned over by the trustee to the executors of said plaintiff as -ght be named in her last will and testament which in turn was be delivered by them to the trustee likewise to be named in id will, for the benefit of her daughter. It seems that it was :o provided that if the remainder of the estate should not suffice pay all the bequests made in that will, the executors were to be thorized and empowered to withhold such part of such trust id as might be necessary to discharge such bequests, *before*ying the corpus together with any accumulations, to the trustees der the will for the benefit of the plaintiff’s daughter. It was 'ther provided that in the event that the plaintiff should die estate or should fail by her last will and testament to dispose the balance of the estate and the property so held in trust, the stee under the agreement was directed to transfer, deliver and *f*over the same to the persons who should then constitute the ct of kin and heirs at law of the plaintiff in proportion and in the -nner as the laws of the State of New York may provide for sons dying intestate. These provisions, plaintiff contends, icate an intention that the trust created was not an irrevocable s. The defending trustee, however, and the special guardian the infant, the *cestui que trust,*assert that by the provisions the trust agreement said *cestui que trust*acquired a vested *234interest, and to strengthen their position they cite the preamble 1 the trust agreement which reads as follows:

*“*Whereas, the party of the first part is desirous of preservir the principal of the securities hereinafter mentioned and the avai thereof, for the benefit of her daughter, Arline Patricia Boucicau and to devolve the care and management thereof on the par of the second part, so as to be relieved therefrom, the income there to be paid to the party of the first part during her lifetime: ” This recital would seem to lend weight to the position of t defendant. However, in construing an instrument of this natui the court must look to it in its entirety and must interpret t intention in that manner which would give effect to all the clam embodied therein. *(Hill*v. *Philo,*171 App. Div. 962; *Buffi East Side R. R. Co. v. Buffalo St. R. R. Co., 111 N.*Y. 132, *13'*The context of the entire instrument and the intent gathered mi not yield to any refinement of language in arriving at a pro{ translation. In this connection here, the intent and purpose the creator of the trust need only be considered.

If we read the instrument as a whole, the obvious expressi of the intention of the creator of the trust is ascertained. It v be seen that it was created for the sole benefit of the plaintiff ui her death at which time it was to terminate. This particu estate was then to be held in trust for her daughter, unless 1 .executors were required to retain therefrom sufficient to compl payment of certain bequests to named parties and then were pay the remainder to the trustee under the will for the benefit the daughter. This would seem to indicate that the *cestui i trust*did not acquire a vested interest in the trust estate. *1*provision for the payment to named legatees was inconsisti with and repugnant to the vesting of the estate. Any intent to the contrary, if one may be said to exist by virtue of expressions contained in the preamble, is unavailing to the defend: unless that seeming intention was carried into effect by the expi provisions of the entire instrument. This was not accomplish The creator, however, not only made provision for the terminat of the trust upon her death and for the payment of the princi to legatees before anything was payable to the trustee for benefit of the daughter, but in effect made it entirely possible defeat the very provisions for the benefit of the latter. *r.*further provision that if she died intestate the estate was to fol the process of devolution to her next of kin in such manner provided by the Statute of Distribution, is but additional evide of this. • She thereby unequivocally indicated her primary positive intention. Under these circumstances, it cannot be f *235iat the daughter acquired a vested interest. *(Aranyi*v. *Bankers Trust Co.,*201 App. Div. 706; *Schwartz*v. *Fulton Trust Co.,*119 Misc. 831; *Cruger*v. *Union Trust Co.,*173 App. Div. 797.)

In the *Schwartz Case (supra)*Mr. Justice McAvoy at the Special lerm in a terse but very able opinion took occasion to declare iat where a trust deed names the settlor herself as sole beneficiary aring her life, she may revoke it at pleasure, even if it recites iat it is irrevocable.

I find, therefore, that it was the intention of the plaintiff to eate a vested interest in herself only, and that the *cestui que ust*did not secure that interest which made necessary her consent i terminate the trust. The agreement may be revoked at the ill of the moving party and accordingly this motion is granted, ittle order on two days’ notice.