The following material facts are set forth in the agreed statement, signed by the parties hereto, on the submission of a controversy, under sections 1279 and 1280 of the Code of Civil Procedure^ namely: The defendant trust company has in its possession a sum of money which, by a decree of the Supreme Court construing the will of Francis J. Metcalfe, it holds in trust to pay the income thereof to the plaintiff Helene R. Metcalfe, the widow of the testator, during her life or until she remarry, and then to pay over the principal of the fund to the four children of the testator, who aré also defendants here, in the several proportions as required by the will. The four remaindermen, by an instrument in writing, duly executed and acknowledged, assigned and transferred all their right, title and interest in and to the remainder in the trust fund to their mother, the beneficiary, who thereupon executed and acknowledged an instrument in writing, releasing to herself all her right to the income, and thus she claims she became the owner of and entitled to the whole fund. Thereupon, claiming to be so entitled, she demanded the fund from the-Union Trust Company, , and offered to it a release from all liability as trustee. That demand was refused by the trustee, it taking the position that the trust was' not terminated and that the release would not protect it from future liability.
The testator died on February 27, 1892, leaving a last will and testament, dated December 24,1886, which was admitted to probate, in New York county on July 21, 1892. All persons interested in, this trust fund are of full age and are before the court as parties to the submission. The question of law raised upon the submission is whether, by the assignment of the remaindermen to the plaintiff, she became entitled to the whole of the principal of the fund now-held by the trust company, and whether, by her release of her right to the income, the estate of the trustee has become destroyed or displaced and the trust terminated under the provisions of section 3 of the Personal Property Law (Laws of 1897, chap. 417), which reads as follows : “ The right of the beneficiary to enforce the performance of a trust to receive the income of personal property, and to apply it to the use of any person, cannot be *146transferred by assignment or otherwise; but the right and interest of the beneficiary qf any other trust in personal property may be transferred. Whenever a beneficiary in a trust for' the receipt of the income of personal property is entitled to a remainder in the whole or a part of the principal fund so held in trust, subject to his beneficial estate for a fife or lives, or a shorter term, he may release his interest in such income and thereupon the estate of the trustee shall cease in that part of such principal fund to which sucfi beneficiary has become entitled in remainder, and such trust estate merges in such remainder.”
If the right of the plaintiff to terminate' this trust is claimed only under the permissive terms of this • particular statute, we are compelled to hold that such right is not acquired thereunder. The trust was created in the year 1892. The effect of the act of 1897 in this case is to destroy the vested right, and estate of a trustee, and to enlarge the interest given by the. will to the beneficiary. Statutes having such an effect are to be construed prospectively and not retroactively. They operate upon trusts created after their' passage, because such trusts are construed in connection with the laws existing at the time of their creation and are necessarily subject to them. It is¡ a general principle of law that statutory, and even Constitutional, provisions which diminish rights arising out of past transactions are to be construed as operating only in futuro, and that such laws never have a retroactive effect, unless it is expressly so provided, or a clear intention on the part of the Legislature is manifest that they shall have such an effect. . This rule has been illustrated and applied in a great variety of cases in this State. ( Wood v. Oakley, 11 Paige, 403 ; Butler v. Palmer, 1 Hill, 325; Berley v. Rampacher, 5 Duer, 183 ; Dash v. Van Kleeck, 7 Johns. 499; Calkins v. Calkins, 3 Barb. 306; People v. Supervisors of Columbia County,. 10 Wend. 363; O'Reilly v. Utah, Nevada & Cal. Stage Co., 87 Hun, 413; McKee v. People, 32 N. Y. 239; Matter of The Evergreens, 47 id. 216 ; Stone v. Flower, Id. 566; People ex rel. Collins v. Spicer, 99 id. 225 ; Matter of Miller, 110 id. 216; Isola v. Weber, 147 id. 333 ; Walker v. Walker, 155 id. 77; People ex-rel. Leet v. Keller, 157 id. 90.)
There is nothing in the statute, of 1897 which discloses a clear legislative intent that it shall have a retroactive effect. Antecedent *147statutes in pari materia seem to strengthen this view. In the act; of 1897 it is provided that whenever certain conditions shall exist, the trust may be terminated. There was a prior statute (Laws of 1893, chap. 452) which amended section 63 of the Statute of Uses, and Trusts (1 R. S. 730), and by which it was provided :■ “ That, whenever the person beneficially interested in the whole or any part; of the income of any trust heretofore or hereafter created for receipt of the rents and profits of lands, or the income of personal properly, shall have heretofore become or may hereafter be or become entitled in his or her own right * * * to the remainder in the whole or any part of the principal fund so held in trust, subject to such estate for a life or lives or a shorter term, then. * * * it shall and may be lawful for such person so beneficially interested * * * to make and execute a conveyance or release duly acknowledged * * v and thereupon the estate of the trustee or trustees * * * shall cease and determine and the trust estates for a life or lives or- a shorter term so far as it affects the whole; or such portion of the income and principal fund to the remainder-in which said person so releasing has heretofore become or may hereafter be or become entitled, shall be and become, forthwith^ merged in such remainder or reversion.”
Section 83 of the Real Property Law (Laws of 1896, chap. 547$ is to the same effect, but in that section the words “ any trust heretofore or hereafter created ” are omitted. Those words are also» absent from section 3 of the Personal Property Law. Theiir absence indicates the expression of a legislative intent to make a. change from the act of 1893 and to expunge from the law that provision which would make it applicable to trusts created before its passage. The retention of the word “ whenever ” in the act of 1897 is not evidence of a legislative intent that the statute should! have the same construction as if the expunged words had been, retained, and it may be well inferred that the words were omitted from the re-enactment of a general rule in order to avoid the objection that a statute of this character should not have retroactive operation. Therefore, considering the right asserted by the plaintiff as being one claimed only under the provisions of the act of 1897, we are of the opinion that the trust cannot be terminated, under that act.
*148- It is contended that the act of 1897 does not differ from the act «of 1893 in substance, -and that it is a substantial re-enactment, so 'far as personal property is concerned, of the provisions of the law fof 1893. The act of 1893 was repealed by section 40 of the act oi -1897, but even if the latter act is to be regarded as re-enacting and continuing the act of 1893, the trust cannot be terminated under either act.
In construing the act of 1893 we are in accord with the views expressed by the Appellate Division.in the fourth department, namely, that the legal estate in the trust fund is in the trustee and it thereby became property in his hands, “ and it is difficult to see how it is within the province of either courts or Legislature to deprive him of that property without due process of law.” (Oviatt v. Hopkins, 20 App-- Div. 168.). Undoubtedly, there was prior to the enactment of the Revised Statutes a very limited power in courts of equity to dissolve trusts under certain circumstances, but, as remarked by Maynard, J., in Cuthbert v. Chauvet (136 N. Y. 328), such courts “ have never, save in exceptional cases, asserted the power to dissolve a trust before the expiration of the term for which it was created,” and “ trusts which have become impossible «of performance because of the existence of conditions not anticipated or foreseen when they were created, are of this character; «also marriage settlements, where the marital relation has been annulled, and other kindred cases. - There was also a larger class, where the court would decree dissolution of the trust upon the application of all the interested parties, but this was strictly limited to cases where the whole design and object of ‘ the trust scheme had beeii practically accomplished and all the interests created by It had ¡become vested. (2 Perry on Trusts [3d ed.], § 920 ; Bowditch v. Andrew, 8 Allen, 341.) Even then the assent of the trustee was iessential to the exercise of jurisdiction^
■ Whether the'limited power of the Court of Chancery to dissolve a-trust was taken ¡away by sections ’63 and 65 of the Statute of Uses and Trusts (1 R. S. 730) which declared the trust interests to he- inalienable it is not-necessary -to inquire. Here the trustee-has not consented to' the destruction of the trust! • Ho such consent is .given- in -the- submission.' The only stipulation en the part of the trustee is that, in the event of the court deciding that the trust has *149been terminated, judgment may be entered that the. fund be paid over to the plaintiff.. That is not a consent to the destruction of the trust. Such a consent should be express and unequivocal. We can draw no inferences, for, in the submission of a controversy the action of the court is confined to facts agreed upon; nothing can be inferred, nor can the court in any manner depart from or go beyond the statement presented. (Fearing v. Irwin, 55 N. Y. 486.)
But even if the foregoing views respecting the retroactive effect of the statute are not correct, the trust created by the testator cannot be terminated, for the conditions do not exist which would authorize that being done. The policy of the law preventing the inalienability of property held in trust under such a trust as that contained in this will, lias been changed by the statute only in the one particular case specified therein. It is not the intention of this statute to destroy trusts which must be preserved in order to carry out the intention of a testator. Its purpose is merely to remove the shackle of a trustee’s title and estate to and in property, the full and actual ownership of which vests in the beneficiary, In this case the beneficiary is not completely and absolutely entitled to the whole estate. Her right to the income is conditional. It is hers for life or until she remarries. The intention of the testator is that she shall cease to be entitled to the income on her remarriage. That intention, lawful, enforcible and subject to no limitation at the time the will was made, cannot be destroyed. If effect were given to the statute, and the fund were transferred to the widow, she might marry the, next day and thus defeat the plain testamentary intention of her-husband. This Anew finds some support in the opinion of the court-in Matter of United States Trust Co. (175 N. Y. 304). The statute is not one for the benefit of the remaindermen. They could sell and transfer their interests Avithout its permission. It is & release of the life interest that the statute provides for. The widow-does not oAvn a life interest absolutely but only conditionally.
We think the proper construction of the statute is that where, the; beneficiary’s right to the income or to the remainder is conditional the statute does not apply,-for it is a self-operating statute, and where it does apply, the estate of the trustee ceases by force of the; statute itself. It has wrought great confusion and great wrong may *150t>e done under its authority. Happily the Legislature has recogMzed it to be of that character and has wisely abolished it, restoring ifche law concerning the inalienability of the beneficiary’s interest to the condition it was in tinder the Revised Statutes. (Laws of 1903, chaps. 87, 88.)
Judgment should be directed on the submission for the défendánts, with costs. ■ . . .
Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred ; Laughlin, J., dissented.