Beam v. Central Hanover Bank & Trust Co.

Untermyer, J. (dissenting).

I dissent for the reasons stated and upon the authorities cited in Davies v. City Bank Farmers Trust Co. (248 App. Div. 380), decided simultaneously herewith. It is only necessary to add that the rights of unborn heirs under section 23 of the Personal Property Law do not, in my opinion, require decision at this time. It is true, of course, that no difficulty will arise if the grantor’s wife and daughter should survive him. There is, however, the possibility that they may predecease the grantor and that, even if no persons are meantime born having any interest in the trust, others now living will at the time of his death constitute his heirs. Those others, undetermined at this time, would be entitled to object to the revocation of the trust without their consent. Although the agreed statement of facts makes no specific reference to relatives of the grantor other than the wife and daughter, it is obvious, I think, that if the wife and daughter should predecease the grantor, he would necessarily have other heirs at law however remote they might be (Dec. Est. Law, art. 3), or at least that there is a strong presumption to that effect.

There should accordingly be judgment for the defendant.

Judgment directed in favor of the plaintiff, without costs. Settle order on notice.