(dissenting). The prior decisions relating to this troublesome subject are consistent at least in that they agree that the intention of the settlor is the guiding factor in construing the deed of trust in order to determine whether it creates a remainder or a reversion. If such intention is to control, it seems to me abundantly clear that the settlor in the present case did not -intend to grant any remainder to her next of kin.
The settlor was the income beneficiary of the single life estate granted. She reserved the right to dispose of the principal by her will. That was the substance of the trust. True, the deed contained a provision as to distribution of principal upon the termination of the trust to the effect that in case of intestacy by reason of the settlor’s failure to exercise the power of appointment her next of kin were to take the principal ‘‘ in the manner and proportions directed by the laws of the State of New York for the distribution of the estates of persons dying intestate.” In my opinion such a provision indicates with reasonable clarity, an intention that the next of kin would take by descent and not by purchase, by operation of law and not by gift under the deed. If no such provision had been contained in the deed of trust, the same persons would take the principal at least if the settlor, a New York resident, was such a resident at the time of her death. It would seem reasonably clear under all the circumstances that the settlor did not intend to create a remainder interest in her next of kin and thus divest herself of control of her property.
This would seem far more clear in the present case than in Matter of Scholtz v. Central Hanover Bk. & Tr. Co. (295 N. Y. 488). There the deed of trust provided for the payment of income to the settlor’s son for life and upon his death a transfer of the principal to Ms descendants, if any, and if he had no descendants to pay the same to the settlor’s next of kin under the laws of the State of New York at the date of her son’s death. The direction to transfer the trust to the settlor’s next of kin was held equivalent to a reversion. The case was decided by applying the principle of law enunciated in Doctor v. Hughes (225 N. Y. 305, 312), to wit, that “ * * * to transform into a remainder what would ordinarily be a reversion, the intention to work the transformation must be clearly expressed.”
In the Scholtz case (supra) those who would be the settlor’s next of kin at-the time of the son’s death would not necessarily be her next of kin at the time of her own death. Nevertheless, it was held that no remainder was created in the next of kin.
*641Other admitted facts as to the circumstances surrounding the execution of the deed as well as the language contained therein strongly support the plaintiff’s claim that there was no intention on her part to divest herself of her property to the extent of granting her next of kin a remainder therein.
I dissent and vote to render judgment in favor of the plaintiff directing a revocation of the trust.
Peck, P. J., Dore and Van Voorhis, JJ., concur with Cohn, J.; Callahan, J., dissents in opinion.
Judgment granted in favor of the defendant, without costs.
Settle order on notice.