In accordance with the provisions of the Personal Property Law (§ 23) a trust in personal property may be revoked by the creator upon the written consent of all persons beneficially interested therein. The question here presented is whether all those beneficially interested in the trust have consented. The settlor and his former wife, the life tenant, have duly consented. By way of abundant caution the only next of kin of the settlor has likewise duly consented.
No rule of property has been better established over the course of the years than that a trust to pay the income thereof to the grantor and the principal upon his death to those who would take in intestacy unless otherwise appointed by the will of the grantor effects merely a reversion in the grantor and the next of kin take by descent and not by remainder. (Doctor v. Hughes,225 N.Y. 305; Berlenbach v. Chemical Bank Trust Co.,235 App. Div. 170 *Page 49 ; affd., 260 N.Y. 539; City Bank Farmers Trust Co. v.Miller, 278 N.Y. 134.)
The facts are clear. The trust instrument, as pointed out by the Appellate Division in an opinion carefully written, plainly shows that the settlor established a life trust for himself, a remainder to Margaret, if she survives him, and a reversion in himself should Margaret predecease him. Beyond this plaintiff made no disposition of his estate. Outside of his former wife Margaret who consents, the settlor alone has the power to dispose of the property by will or if he dies without so doing, it goes to his next of kin. In either event it would go as his property. (City Bank Farmers Trust Co. v. Miller, supra.) A further indication that the grantor intended to retain a reversion in the principal subject only to the remainder interest of Margaret is the provision in the agreement giving the grantor the right to withdraw from the principal a sum not exceeding $15,000.
In Schoellkopf v. Marine Trust Co (267 N.Y. 358, 363) we said: "If the settlor had retained a reversion which would pass upon his death to his `heirs' or next of kin, then no consent would be necessary from them. They would then take, * * * through succession to the interest of the settlor and he could consent to the destruction of that interest. (Doctor v. Hughes, 225 N.Y. 305. )"
Plaintiff is entitled to judgment revoking the trust instrument.
CRANE, Ch. J., LEHMAN, O'BRIEN and HUBBS, JJ., concur with LOUGHRAN, J.; FINCH, J., dissents in opinion in which RIPPEY, J., concurs.
Judgment accordingly. (See 280 N.Y. 687.) *Page 50