People ex rel. Van Norden Trust Co. v. Wells , 103 N.Y.S. 874 ( 1907 )

Scott, J.:

The relator, Mary Helena Sharpsteen, a non-resident of this State, conveyed and transferred to the Tan Horden Trust Company, a domestic resident corporation, a large amount of real and personal estate in trust, to invest and reinvest and to.collect the rents, issues and profits, and after paying the expenses of administration, to “ pay over one-half of such net rents, issues and profits, income, interest and increment as aforesaid to the said party hereto of the first part (Mary Helena Sharpsteen) and the other half to .Mary-H. . Myer, the mother of the party hereto of the first part as long as the said Mary H. Myer shall live, or until such time as this trust shall be revoked' as hereinafter provided for.” It was further provided that the trust might be revoked at any time by either of the parties to the trust deed upon giving thirty days’, notice in writing to the other party, but this power of revocation could be exercised by the settler, Sharpsteen, only with the concurrent consent of her mother, Mary H. Myer, if living, and her counsel, and if the said Mary II. Myer should be dead, or for any cause' incapacitated, then the concurrent consent of Helen A. Michael, the aunt of the settler, and also that of her counsel would be necessary to effect a revocation .by the settler.

The question at issue is whéther this deed conveyed the legal title in the trust property to tlie Tan Horden Trust Company, or whether such legal title remains' in the settler, in which case it would be exempt from taxation in this State.

The relators contend that the instrument merely creates an agency, or at most a passive trust which is not recognized by our statutes, and which confers no title upon the grantee. This view is, as we consider, unsound. We find in -the instrument all the essen: tial elements of a trust of personal property. A designated bene-

ficiary; a designated trastee who is not a beneficiary; property sufficiently designated or identified to enable title thereto to pass to the trustee; and the actual delivery of the property to the trustee *in such form as to indicate an intention of passing the legal title to him. (Brown v. Spohr, 180 N. Y. 201.) The provisions of the deed of trust clearly indicate an intention to vest the title to the personal property in the trustee. It is authorized to collect not only the interest upon, but also the principal of the mortgages, and to reinvest the principal, and in case of foreclosure to bid in the. property, taking title thereto in its own name as trustee. Certainly in so far as the trust is created for the benefit of the settler's mother, it complies in every regard with the requirements of law respecting the creation of a valid and effectual trust, and being a valid trust to that extent at least it cannot be properly called a passive trust or á mere agency. The fact that the trust deed contains provisions for revocation, not by the settler alone, but by her in conjunction with other persons, does not affect the validity of the instrument as one’ creating a trust. (Schreyer v. Schreyer, 101 App. Div. 456 ; affd., 182 N. Y. 555.) We are, therefore, of -the opinion that the instrument in question created a valid, active trust, and that the legal title to the trust estate passed to and vested in the trustee. It follows that the order appealed from must be affirmed, with ten dollars costs and disbursements.

Patterson, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.