In re the Accounting of Ranger — 15 Misc. 2d 754

Majority

p. 754

In the Matter of the Accounting of Louis Ranger, as Successor Trustee under a Deed of Trust with Maurice S. Wormser and Another.

Supreme Court, Special Term, New York County,

December 5, 1952.

Wold, Busin, Miller, Levy & Davis (Irwin Busin and Samuel Miller of counsel), for petitioner.

B. Randolph Guggenheimer for Gwendolyn R. Guggenheimer.

Delafield, Marsh & Bope (Frederick P. Rich and James Barper, Jr., of counsel), for objectants.

p. 755

Abraham Kantor as special guardian for infants.

The Referee’s report in connection with Motions Nos. 42 and 43, considered together, is confirmed in all respects as to certain portions of 18-e and item No. 1. It was found that the distribution of $15,938.57 to Florence R. Wormser was an ineffective partial revocation of the trust, since at the time there was a child en ventre sa mere, whose consent was necessary pursuant to the provisions of section 23 of the Personal Property Law. While a fiction has developed in the law which affixes a legal personality to an unborn child, for all purposes beneficial to the infant after birth, the fiction should not be further extended to include the power of such potential ‘ ‘ being ’ ’ to revoke a trust. Any other view would create and be susceptible of innumerable practical difficulties. Accordingly, that portion of the Referee’s report which concludes that there was an ineffective partial revocation of the trust herein is rejected. The Referee’s report with respect to the $5,000 item is sustained. The main motion, heretofore held in abeyance, to settle the trustee’s account is granted, with such modifications as are indicated in the decision herein.

Settle order.