Beam v. Central Hanover Bank & Trust Co.

Dore, J. (concurring).

The intention of the settlor under this trust instrument, properly construed, was not to create a remainder in his heirs at law but to retain a reversion in the settlor of the trust. The trust, therefore, is revocable under section 23 of the Personal Property Law, and, accordingly, I concur in the result reached by the majority of the court. The heirs at law in this case acquired through the trust instrument no estate at all, at most an expectancy, more accurately a mere hope, spes successions (Matter of Parsons, L. R. 45 Ch. Div. 51, 55), which may be barred by will. In solving the question whether there is any remainder, a distinction must be made between gifts to the heirs of the holder of a'particular estate and gifts to the heirs of the grantor. “ A man cannot either by conveyance at the common law, by limitation of uses, or devise, make his right heir a purchaser.” (Pibus v. Mitford, [1674] 1 Vent. 372.) This principle was quoted with approval in Doctor v. Hughes (225 N. Y. 305, 311, 312) in which the Court of Appeals said: “ The reservation of a reversion is not inconsistent with the creation of a trust to continue until the death of the reversioner [citing cases]. We do not say that the ancient rule survives as an absolute prohibition limiting the power of a grantor. * * * But at least the ancient rule survives to this extent, that to transform into a remainder what would ordinarily be a reversion, the intention to work the transformation must be clearly expressed.”

Here there is no clear expression of such purpose.

Judgment, therefore, should be directed in favor of the plaintiff, without costs.