Court v. Bankers' Trust Co.

Headnote

Court v. Bankers' Trust Co., 173 App. Div. 955 , affirmed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 1, 1916, which affirmed an order of Special Term denying a motion by plaintiif for judgment in her favor upon the pleadings. The action is

against a trustee by the creator of a trust to enforce its revocation under section 23 of the Personal Property Law. The trust deed provided that upon the death of the plaintiff the principal should be paid to persons designated by her will or if she leave no will to the next of kin who are descendants of her father and mother. The answer set up five separate defenses: 1. That Anna B. Williams, who is the sister of the plaintiff, Edwin Sidney Williams, who is a brother of the plaintiff, and Grace Hilton, who is the adopted daughter of Payson Williams, a deceased brother of the plaintiff, are the descendants of the father and mother of the plaintiff according to law, and upon her death would be her next of kin of that description, and have not consented to the revocation of said trust or trusts. 2. That the said trust or trusts are irrevocable for the reason that until the death of the plaintiff the person or persons cannot be determined to whom the principal of the trust fund is directed to be paid. 3. That there is a defect of parties defendant in that the said Anna B. Williams, Edwin Sidney Williams and Grace Hilton are not made defendants. 4. That section 23 of the Personal Property Law is unconstitutional under the Constitution of the United States in so far as it permits the plaintiff to revoke said trust or trusts without the consent of said Anna B. Williams, Edwin Sidney Williams and Grace Hilton or of any other person or persons whomsoever. 5. That section 23 of the Personal Property Law is unconstitutional under the Constitution of the state of New York in so far as it permits the plaintiff to revoke said trust or trusts without the consent of the said Anna B. Williams, Edwin Sidney Williams and Grace Hilton or of any other person or persons whomsoever.

The following question was certified: “ Is the plaintiff entitled to judgment on the pleadings ? ”