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the so-called annuities or sums payable annually by trustees for the benefit of the so-called "annuitants" are not assignable.77

How far Settlors of Trusts May Authorize Alienation or Anticipation. How far settlors of estates may authorize the beneficiaries of a trust, entitled to the rents and profits of lands, to anticipate, charge or alienate such beneficial interest is a question which was formerly deemed to go to the validity of the entire trust limitation.78 But, as was said in Crooke v. County of Kings, there seems to be no good reason why a settlor may not relieve the beneficiary from the ban of this section or any other provision tending to a perpetuity.7

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80

Shifting Trusts. Trusts for a certain beneficiary to endure until attempted alienation and then over are sustained in this State.8 Trusts for Settlor's Own Benefit. This section has no application to trusts created by settlor for his own benefit.81

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A "Sum in Gross" May be Alienated. A "sum in gross under the Revised Statutes was held to mean a single sum whether payable at one time or in installments.8 82 But the present section of this act does not limit the power of any beneficiary to the assignment of sums in gross. All interests of beneficiaries, except those created under the 3d subdivision of the 96th section of this act, are now alienable.83 No doubt such was the law prior to this act.84 Beneficiary of an Express Trust May Take a Remainder." We have seen that a beneficiary of an express trust may also be entitled to an estate limited in remainder.85 This fact gave rise to the act of 1893,8

77 Cochrane v. Schell, 140 N. Y. 516; Rothschild v. Roux, 78 App. Div. 282; Peoples' Trust Co. V. Flynn, 106 id. 79, 83, 113 id. 683; revd., 185 N. Y. 385.

78 Coster v. Lorillard 14 Wend. 265, 332, 333; Wood v. Wood, 5 Paige, 596; cf. Crooke v. County of Kings, 97 N. Y. at p. 448; Marvin v. Smith, 56 Barb. 600, 605; affd., 46 N. Y. 571, 577; Wright v. Miller, 8 id. at p. 25.

7997 N. Y. p. 448; cf. Ullman v. Cameron, 92 App. Div. 92; Solley v. Westcott, 43 Misc. Rep. 188.

80 Supra, pp. 119, 477; Raymond v. Tiffany, 59 Misc. Rep. 283; Russell v. Hilton, 37 id. 642.

86

81 Schenck v. Barnes, 156 N. Y. 316; Raymond v. Harris, 84 App. Div. 546; Baltes v. Union Trust Co., 180 N. Y. 183.

82 Cochrane v. Schell, 140 N. Y. at pp. 534, 535; Rothschild v. Roux, 78 App. Div. 282.

83 § 103, supra.

84 Van Wyck v. Richman, 33 Misc. Rep. 404; supra, pp. 455, 497.

85 Supra, pp. 463, 500, Stevenson v. Lesley, 70 N. Y. 512; Ogden v. Ogden, 40 Misc. Rep. 473; In re L'Hommedieu, 138 Fed. Rep. 606; Connolly v. Connolly, 129 App. Div. 492.

83 Supra, p. 496, and see Matter of Heinz, 20 Misc. Rep. 371.

now abrogated. This was not the first act of a like character. Chapter 375, Laws of 1849,87 provided for the termination of trusts for the sole benefit of married women on the certificate of a justice of the Supreme Court.88 At common law trusts might be extinguished by the united action of all parties in interest and the cestui que trust might call for a conveyance of the legal estate.89 The act of 1893 is said to be dangerously near the constitutional prohibition directed against violations of vested interests;90 but it is difficult to assent to this proposition, as the interests of cestuis que trustent are rendered inalienable only by statute, and what a statute effects may be enlarged or abrogated if vested rights are only enlarged and not taken away.

92

Act of 1893. Under the act of 1893, and for some years under section 83 of the Real Property Law of 1896,91 a beneficiary of a trust, entitled also to the estate in remainder, might extinguish the trust and call upon the trustees for a conveyance.9 This was a return to the law existing before the Revised Statutes.93 The act of 1893 was, however, said not to apply to contingent remainders.94 It was also argued that it should not apply where the remainder was acquired by assignment.95 The repeal of the substance of the act of 1893 saves existing rights, and consequently places trusts

87 § 29 of Domestic Relations Law, Laws of 1896, now $ 59, chap. 14, Consol. Laws of 1909. Cf. Sharman v. Jackson, 98 App. Div. 187; Dickey v. Goldschmidt, 60 Misc. Rep. 258.

88 Cf. Douglass v. Cruger, 80 N. Y. 15; Genet v. Hunt, 113 id. at pp. 168, 171; and as to construction of this act of 1849 to trusts created after its enactment, Thebaud V. Schermerhorn, 10 Abb. N. C. 72.

89 Short v. Wilson, 13 Johns. 33, 37; Brewster v. Brewster, 4 Sandf. Ch. 22, 29; Cuthbert v. Chauvet, 136 N. Y. 326, 329; Lewin, Trusts, 486; cf. Wright v. Miller, 8 N. Y. 9; and Webb's Academy & Home for Shipbuilders v. Hidden, 118 App. Div. 711.

90 Oviatt v. Hopkins, 20 App. Div. 168; Metcalfe v. Union Trust Co., 181 N. Y. 39; Matter of Kirby, 113

App. Div. 705, 711; cf. Matter of Heinz, 20 Misc. Rep. 371; Cuthbert v. Chauvet, 136 N. Y. 326, 330, 331. 91 Chap. 452, Laws of 1893; supra, P. 496.

92 Snedeker v. Congdon, 41 App. Div. 433, 438; Butler v. Butler, 41 id. 477, 479; Mills v. Mills, 50 id. 221; Albany Exchange Savings Bank v. Brass, 59 id. 370, 376; Matter of Hogarty, 34 Misc. Rep. 610; affd., 62 App. Div. 79; Thall v. Dreyfus, 84 id. 569; Phillips v. Pike, 121 id. 753; cf. Matter of Rutherford, 36 Misc. Rep. 314; Cook v. Straiton, 41 id. 206.

93 Infra, p. 503.

94 Matter of Hogarty, 34 Misc. Rep. 610, 62 App. Div. 79; Thall v. Dreyfus, 84 id. 569.

953 Columbia Law Rev. 155; sed cf. Mills v. Mills, 50 App. Div. 221.

created after 1893 and until 1903 on a particular basis.96 It means. that such cestuis que trustent have still the right to extinguish the trust when vested with the remainder, although other cestuis would not have such rights.

Rights of Certain Beneficiaries Saved. The rights of certain beneficiaries to extinguish the trusts, under the act of 1893, if existing on March 25, 1903, were especially saved by that act and by section 103 of the Consolidated Real Property Law. Thus beneficiaries of trusts created between April 31, 1903, and March 25, 1903, occupy a peculiar status, and they may claim the right to extinguish a trust for the receipt of rents and profits, whenever they become entitled to the remainder; for, if they had the right to extinguish it under the act of 1893, this section of this act still preserves it to them.97

Exception. This section has no application to trusts created before January 1, 1830.98

Comment. It has been held that the acts relating to the extinguishment of express trusts by merger and consent were not retroactive, and consequently were inoperative on trusts created before their passage.99 It is also intimated 1 that the acts referred to above, permitting the merger of vested legal estates in remainder, with vested equitable interests of trust beneficiaries, and the consequent destruction of the trust, are in the nature of an interference with vested rights of trustees. This seems to assume that the estate to feed a trust is one vested in the trustee independently of the positive law, whereas such estates exist only by sufferance and permission of law. A trustee's estate is not a proprietary estate. Restraints on alienation are also statutory exceptions to law and anomalous. What the law tolerates, it may certainly reform. It is to be observed that several judges dissented in the case last cited.3

96 Chap. 88, Laws of 1903; cf. Matter of Gibson, 42 Misc. Rep. 157; Phillips v. Pike, 121 App. Div. 753; Homnyak v. Prudential Ins. Co., 194 N. Y. 456; 5 Col. Law Rev. 391-393. 97 Garrett v. Duclos, 128 App. Div. 508, 510; Connolly v. Connolly, 122 id. 492.

98 Dyett v. Central Trust Co., 140 N. Y. 54; Cuthbert v. Chauvet, 136 id. 326, 331.

99 Metcalfe v. Union Trust Co., 87 App. Div. 144, 181 N. Y. 39; Oviatt

v. Hopkins, 20 App. Div. 168; Newcomb v. Newcomb, 33 Misc. Rep.

191.

1 Following Oviatt v. Hopkins, 20 App. Div. 168.

2 According to Oviatt v. Hopkins the Statute of Uses would be unconstitutional if re-enacted. But see Gray, J., in Metcalfe v. Union Trust Co., 181 N. Y. 39, 44; Lewis v. Howe, 174 id. at p. 350.

3 87 App. Div. 150, 181 N. Y. 39.

It seems to be an extraordinary condition of the law if the Legislature cannot enable us to extinguish a trust where all parties to the settlement, including all the beneficiaries of the trust and those entitled in remainder, consent to a resettlement of the estate and only the trustee dissents. At common law, cestuis que trustent could always call upon trustees to execute conveyances of the estate where the cestuis had an equitable fee, and if the trustee did not obey he was charged with costs. This was the law in this State prior to the Revised Statutes. Now it seems this is all changed if the recent decisions are to be relied on. One may have the entire beneficial estate and the legal estate in fee in remainder, and yet it is held that the Legislature is powerless to enable such an one to destroy the trust without the consent of the trustee.5 Can this be the law?

But in order to extinguish a trust under the act of 1893 and section 83 of the Real Property Law of 1896 as it stood before the amendment of 1903, the beneficiary's interest must not be partial, or conditional, but absolute and integral. In other words, the beneficiary must have what was formerly called an “equitable fee simple."

Notice of Trust. A recorded conveyance to trustee simpliciter is notice of a trust.7

Amendment. This section is not so efficient as the original section of the Revised Statutes, which should, we think, be restored.8

4 Lewin, Trusts (3d Lond. ed., 2d Am. ed.) 595; Metcalfe v. Union Trust Co., 181 N. Y. at p. 44.

Oviatt v. Hopkins, 20 App. Div. 168; Metcalfe v. Union Trust Co., 87 id. 144. But see 181 N. Y. at pp. 43, 44; Matter of Kirby, 113 App. Div. 705, 711.

6 Matter of United States Trust

Co., 175 N. Y. 304; Metcalfe v.
Union Trust Co., 87 App. Div. 144;
Matter of Gibson, 42 Misc. Rep. 157;
Phillips v. Pike, 121 App. Div. 753.
7 Sternfels v. Watson, 139 Fed.
Rep. 505; cf. Title Guarantee &
Trust Co. v. Fallon, 101 App. Div.
187; 242, Real Prop. Law.

8 See note 13, Appendix I, infra.

§ 104. Transferee of trust property protected. Where an express trust is created, but is not contained or declared in the conveyance to the trustee, the conveyance shall be deemed absolute as to the subsequent creditors of the trustee not having notice of the trust, and as to subsequent purchasers from the trustee, without notice and for a valuable consideration.

Formerly section 84, Real Property Law of 1896, chapter XLVI, General Laws:

§ 84. Transferee of trust property protected. Where an express trust is created, but is not contained or declared in the conveyance to the trustee, the conveyance shall be deemed absolute as to the subsequent creditors of the trustee not having notice of the trust, and as to subsequent purchasers from the trustee, without notice and for a valuable consideration.9

Section 84 was formerly 1 Revised Statutes, 730, section 64:

$ 64. Where an express trust is created, but is not contained or declared in the conveyance to the trustees, such conveyance shall be deemed absolute, as against the subsequent creditors of the trustees, not having notice of the trust, and as against purchasers from such trustees, without notice, and for a valuable consideration.10

Effect of this Section. While the statute still contemplates that an express trust shall be effected by means of a conveyance or will,11 yet the declaration of trust may be separate from the instrument of conveyance.12 As subsequent purchasers have notice of all recorded instruments affecting the title,13 this section relieves only bona fide purchasers and creditors of the grantee from the necessity of inquiring whether a recorded conveyance to their grantor, absolute on its face, is in reality connected with a trust, raised dehors such conveyance.14

Note of Revisers. In their note to this section the original revisers state that "the effect of this section will be, in a great measure, to abolish secret trusts by making it the interest of the parties, in all cases, that the trust should be incorporated in the conveyance." 15

9 Repealed by Real Prop. Law of 1909, $460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 10 Repealed, chap. 547, Laws of 1896.

11 Infra, § 242, Real Prop. Law. 12 Hutchins v. Van Vechten, 140 N. Y. 115; supra, p. 436.

13 Johnson v. Fleet, 14 Wend. 176, 183; Kirsch v. Tozier, 143 N. Y. 390, 395; Wright v. Douglass, 7 id. 564569; Briggs v. Davis, 20 id. at p. 21; § 291, infra.

14 Harrington v. Erie County Sav. Bank, 101 N. Y. 257. 15 Infra, Appendix III.

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