(dissenting). Whether the second indenture was a revocation rather than a modification of the first indenture is of no practical importance herein. The minor change related only to the manner of administration of the trust, and was of a character that did not affect in any wise a property right of unborn contingent beneficiaries. The change in manner of administration left untouched the extent to which a possible enjoyment of property might devolve to such unborn.
Giving effect to a consent executed under section 23 of the Personal Property Law by all persons in being beneficially interested to a change in the indenture, which is not of a material character, does not affect any property right of an unborn beneficiary.
Accordingly, sustaining the, validity of the second indenture, based on this consent, invades no property right or advantage of an unborn beneficiary, and as to such the change in the second instrument effects or generates no invalidity. The degree of practical importance of the contention of the appellant is further lessened by the fact that Lewis G. Young may exercise his power of appointment and preclude devolution of the property to such unborn.
Judgment, in so far as appealed from by plaintiff, reversed on the law, with costs payable by respondents-appellants personally, and judgment directed in accordance with opinion by Johnston, J., without costs.
In view of the foregoing, the appeal by respondents-appellants is dismissed, without costs.
Findings of fact and conclusions of law inconsistent herewith are reversed and new findings will be made.
Settle order on notice.