I dissent upon the, groundih atdhi s trust, the provisions of which differ in no substantial respect from the trusts under consideration in Whittemore v. Equitable Trust Co. (250 N. Y. 298); Schoellkopf v. Marine Trust Co. (267 id. 358), and Hussey v. City Bank Farmers Trust Co. (236 App. Div. 117; affd., 261 N. Y. 533), creates a remainder in those^per.sonAwho„jwoxild~take^febe-ftorpiia if tho PTa.nf,or .should_£Hr intestate, a resident of the State of New York. That remainder mav be defeated by the grantor’s last will and testament. It may not be defeated”by anlñstrumeñt of revocation during fife. Not only does that conclusion follow from the cases cited, but it follows also from the fact that the grantor has expressly retained the nower of disposition bv will. If it wa,s her intention to retain a reversion, then it Js difficultTo.-iindersta,nd,..wJxy-she.-..sh.oii]d.-.hav.e.-.irisej-ted this superfluous provision. The grantor has parted with the entire estate to the trustee, reserving, if I am correct, only the right to the income for fife and the power of disposition by will. Therefore, upon her death those persons, to whom the estate may .. be distributable will take bv purchase under the trust agreement " arirl not by iuheritance througb~EerT It is not decisive that the same persons would take by inheritance as may take by purchase. The*~difficu]ties. however, become intensified here since it mav happen. thnl^Im^-ant.Qnwi]l.die;a,jesideM.uf^„Stide-hav.ing-j1 iff eg- II ent laws relating to the distribution of property in cases of intestacy j j the laws ol_thmStata.iA.-New,York. which, bv express provision, control the devolution of the corpus of the trust.
*384If it be true that the grantor’s next of kin acquired an interest in the principal of the trust, then it seems to me to follow that the consents of the grantor’s husband and brother are insufficient to accomplish a revocation. Although these are the only persons who—would constitute the grantor’s next of kin if she had died at. the moment~oTrevocation, the persons now li-vi.ngr_who will be nayt—nf—kim when the interest, vests upon her death, are necessarily undetermined at this time. Those persons have not, consented and, since the class is indeterminate (Moore v. Littel, 41 N. Y. 66), cannot consent to revocation. That question also was presented and, in language not to be misunderstood, was decided in the Schoellkopf case. There it was held that the consents of the settlor’s sons, constituting the settlor’s next of kin at the time of revocation, were insufficient in the absence of the consents of infant grandchildren and great grandchildren of the settlor living at that time. For identical reasons the consents of the grandchildren and great grandchildren would have been insufficient since, if they too had predeceased the settlor, their interest would have vested in more remote relatives.
Section 23 of the Personal Property Law, in my opinion, was not intended to permit the destruction of any estate which had previously been recognized as such, but only to make possible the termination of a trust upon consent of every interested party where formerly that was not permissible. (See Chaplin on Suspension of the Power of Alienation [3d ed.], §§ 222-263, and cases cited.) Consequently, if the grantor intended to retain a right of revocation of such a trust, it should have been reserved.
Judgment should, therefore, be directed in favor of the defendant.
Judgment directed in favor of the plaintiff, without costs. Settle order on notice.