Whittemore v. Equitable Trust Co.

• Decision Date: 29 May 1914
• Citation: 162 A.D. 607,147 N.Y.S. 1058
• Parties: MABEL T. WHITTEMORE, Plaintiff, v. THE EQUITABLE TRUST COMPANY, as Successor, by Merger, to the VAN NORDEN TRUST COMPANY, Defendant.
• Court: New York Supreme Court

162 A.D. 607

147 N.Y.S. 1058

MABEL T. WHITTEMORE, Plaintiff, v. THE EQUITABLE TRUST COMPANY, as Successor, by Merger, to the VAN NORDEN TRUST COMPANY, Defendant.

Supreme Court of New York, First Department.

May 29, 1914

SUBMISSION of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.

COUNSEL

Samuel Ecker, for the plaintiff.

Robert H. Strahan, for the defendant.

LAUGHLIN, J.:

On the 29th day of December, 1902, the plaintiff as party of the first part and the Van Norden Trust Company as party of the second part, executed an agreement in writing, under seal and duly acknowledged, whereby the plaintiff assigned and transferred to the trust company certain securities consisting of railroad bonds and certain capital stock of the aggregate par value of $21,000, upon trust to hold the securities and any securities into which they might be converted as a trust fund subject to trusts to pay the net income to the plaintiff, or to apply the same to her use, so long as she should live, and to pay over to her, or apply to her use, such portion of the principal 'as may in the opinion of the party of the second part be necessary for the support of the party of the first part in addition to such income and profits, and upon her death to distribute the principal of said trust fund then remaining undisposed of hereunder among her next of kin.' The trust company was expressly authorized to sell all or any part of the securities and invest the proceeds, and in so doing to exercise its own discretion without reference to any law regulating the investments of trustees, and to deduct from the income or principal its reasonable expenses and disbursements and its compensation, the rate of which was therein prescribed. The deed of trust contained no express reservation of power of revocation. The trust company expressly acknowledged the receipt of the securities and accepted the trust. The defendant is the successor by merger of the Van Norden Trust Company. On the 3d day of April 1914, the plaintiff attempted to revoke the trust pursuant to the provisions of section 23 of the Personal Property Law (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], added by Laws of 1909, chap. 247) by serving upon the defendant a formal notice in writing duly acknowledged describing the original trust agreement and demanding that it turn over and deliver to her attorney the securities or trust fund held by it pursuant to said trust agreement, together with all accumulations of interest and income arising therefrom. The trust company declined to comply with the request, and thereupon and on the 8th day of April, 1914, this submission was agreed upon in due form, and it is therein recited that 'the present next of kin of the plaintiff are' a brother and sister therein named, both of the city of Fishkill-on-the-Hudson, and that they are of full age and sound mind.

The learned counsel for the defendant does not contend that the trust is irrevocable for the reason that it cannot be determined until the death of the plaintiff who will be her next of kin; but he contends that the consent of the brother and sister of the plaintiff to the revocation of the trust is necessary, for the reason that if the trust were presently terminated by the death of the plaintiff they would be her next of kin and entitled to take the remainder. The theory on which this argument is based, according to the submission, is that the brother and sister now have a beneficial interest in the deed of trust, and according to the brief that they have a contingent interest in the remainder. Section 23 of the Personal Property Law, which has been sustained as a valid retroactive enactment (Hoskin v. Long Island Loan & Trust Co., 139 A.D. 258; affd. on opinion below, 203 N.Y. 588; Sperry v. Farmers' Loan & Trust Co., 154 A.D....