The question involved in this appeal is whether Elizabeth L„. Hughes had an' interest in the said property which was alien*771able and p'assed by virtue of the conveyance to Augustus S. Hughes, her husband.
In determining this question the existence of a power in the trustee to sell the property does not change the nature or quality of the ulterior limitations of the deed of trust, and they will take effect subject to the exercise of the power. We may, therefore, in our consideration of the case, disregard entirely the provisions of the deed concerning the power of sale vested in the trustee, nor does the power of revocation, in my opinion, have any effect upon the result in this case. Such a power of revocation vested in a trustee has been sustained. (Schreyer v. Schreyer, 101 App. Div. 456; affd., 182 N. Y. 555.) I am unable to find a reported case in which the effect of such a power of revocation upon the remainders created by a deed or devise has been adjudicated. It is well settled that the existence of an unexecuted power of appointment will have no effect upon remainders limited to take effect in default of the exercise of such power, and such remainders will vest subject to be divested by the appointment, if made. This was true both at common law and under the Real Property Law. (Root v. Stuyvesant, 18 Wend. 257; Matter of Haggerty, 128 App. Div. 479; Real Prop. Law [Consol. Laws, chap. 50; Laws of 1909, chap. 52], § 41.) A power of revocation, while not' identical with a power of appointment, would have the same effect upon the ulterior limitations, namely, to cut them off completely by a conveyance of the property to some other person. It would seem, therefore, that the same rule which obtains in the case of a power of appointment should be applied to an ulterior limitation following a power of revocation. I will accordingly pass to a consideration of the provision of the deed that upon the death of the life beneficiary the trustee “shall convey the said premises * * * to the heirs-at-law of ” the said life beneficiary. It seems to me that this direction is merely a channel of conveyance by means of a trustee, and the language of the instrument is equivalent to a direction that upon the death of the life beneficiary there be a remainder to his heirs.
Under the rule in Shelley's case, a gift to A for life with remainder to his heirs created a fee in the first taker and dur*772ing the life of A his heirs had no interest in the' property, but took by descent upon the death of their ancestor A. This rule has been abrogated by statute in this State, which statute as re-enacted in the Real Property Law (§ 54) provides: “Where a remainder shall be limited to the heirs * * * of a person to whom a life estate in the same premises is given, the persons who, on the termination of the life estate, are the heirs * * * of such tenant for life, shall take as purchasers, by virtue of the remainder so limited to them.” In the present case the life estate of the ancestor of Elizabeth L. Hughes is an equitable one and even before the passage of the statute abolishing the rule in Shelley’s case, would not have been within the rule, by reason of that fact, and she would take after the death of her father, by purchase through the deed and not by descent. Had the grant to the trustee emanated from a stranger and not from the life beneficiary, there could be no doubt that the heirs of the life beneficiary under this instrument would take by purchase. It seems to me that it is doing violence to the language of the instrument to hold otherwise merely because the grantor happened to be also the ancestor and because the fee would descend to the heirs in any event if he failed to dispose of it. He has made a deed drawn in legal terminology, presumptively by one learned in the law. The direction to the trustee to convey the property to his heirs after his death if construed merely as a direction to allow the property to pass according to law by descent, was entirely unnecessary for the property would have so descended without such a direction. Why presume that the grantor intended to insert a totally unnecessary clause in his deed ? Is it not more probable that the words were used for a definite purpose and that he desired to divest himself entirely of his control over the property and to grant a future interest therein to such persons as might be his heirs at law at the time of his death ? If this clause of the deed is construed to mean what it plainly says, the heirs of the grantor will, at his death, take by purchase, and the limitation is clearly a remainder to a class. But, it is said, there can be no “heirs” of a living person. Section 54 of the Eeal Property Law, quoted above, completely answers this and shows that under the law of this State there *773can be a remainder to the heirs of a living person. True, until the death of the life beneficiary, it is subject to be opened up for the inclusion of new members. Also, those presumptively heirs can only remain so by surviving the event, but these features are true of all class limitations. It seems to me that the conclusion is irresistible that Elizabeth L. Hughes will take the property by purchase through the trust deed upon the death of her father. If so, she has an interest in the deed and it cannot be revoked without her consent. Whether this interest be deemed vested or contingent, it is a remainder and is alienable and passed to her grantee subject to being divested by her death prior to that of the life tenant or by the exercise of some of the powers contained in the trust deed. (Moore v. Littel, 41 N. Y. 66; Clowe v. Seavey, 208 id. 496.)
The only case in an appellate court in this State which appears to hold contrary to this conclusion is Whittemore v. Equitable Trust Company (162 App. Div. 607), in which this court in construing a provision of a deed of trust relating to personal property only, which directed the trustee to pay the income and so much of the principal as was necessary for her support to the grantor for life, “ and upon her death to distribute the principal of said trust fund then remaining undisposed of hereunder among her next of kin,” held that the grantor had no intention of creating an ulterior limitation to such persons as might answer the description of “next of kin ” at the time of her death, but merely intended to provide that the property be distributed according to law. With this finding as a premise the court then rightly proceeded to hold that an interest as presumptive heir or next of kin of a living person is a mere possibility and is not-an interest which the law recognizes. The case depends upon its own finding as to the intent of the grantor as disclosed by the language of the deed there involved, and should not be extended beyond the facts peculiar to that case.
Granted, in the instant case, that the appellant Elizabeth L. Hughes has a remainder interest in the deed of trust, there can be no question under our statutes that she is a “ person in being, * * * who, if the life estate should now cease, would eo instanti et ipso facto, have an immediate right of possession ” *774and “the remainder is vested, and, by necessary consequence, all the contingencies which may operate to defeat the right of possession are to operate and only to operate as conditions subsequent.” (Moore v. Littel, supra.) It is clear under the decisions above cited that the interest of the appellant Elizabeth L. Hughes is alienable, and passed to Augustus S. Hughes.
The judgment impressing a trust upon such remainder in behalf of the creditors of Augustus S. Hughes is, in my opinion, right and should be affirmed, with costs.
Judgment reversed and judgment directed in favor of defendants dismissing complaint upon the merits, with costs in this court and in the court below. Order to be settled on notice.