(207 N.Y.S.)

Orinoco Realty Co. v. Goodkind, 205 N. Y. S.
941. Judgment affirmed 145 N. E. 743, 239
N. Y. 69.

THE

NEW YORK SUPPLEMENT

VOLUME 207

(124 Misc. Rep. 232)

BOUCICAULT v. LEUBUSCHER.

(Supreme Court, Special Term, New York County. December 23, 1924.)

1. Trusts 112-Creator's intent, as gathered from entire instrument, controls construction.

In construing trust agreement, court must look to entire instrument and carry out creator's intention, which must not yield to any refinement of language in arriving at proper interpretation.

2. Trusts 59(1)-Trust held not to create vested interest, and therefore revocable.

Trust for benefit of creator for life, remainder in trust for daughter, unless creator's executors found it necessary to retain therefrom funds sufficient to complete certain bequests, and if creator died intestate directing distribution thereof as intestate property, created no vested interest in daughter, and could be revoked, notwithstanding recital of preamble that trust was for daughter's benefit.

Action by Renee Boucicault against Frederic C. Leubuscher, as trustee. On plaintiff's motion for judgment on the pleadings. Motion granted.

Gordon S. P. Kleeberg, of New York City, for plaintiff.

Frederic C. Leubuscher, of New York City, in pro. per.

Herman Joseph, of New York City, special guardian, in pro. per.

LEVY, J. Motion by plaintiff for judgment on the pleadings. The action was brought to revoke a certain trust agreement and for other relief incidental. The answer interposed sets in motion only the issue presented by the ninth paragraph of the complaint, which alleges. that such agreement is revocable and terminable at the will of the plaintiff.

The plaintiff created a trust for the benefit and use of her daughter, and she now seeks to have the same set aside and have herself declared the only person beneficially interested therein. The defendant, Leubuscher, who by the instrument was made trustee, denies that the trust thus created was revocable, and asserts that the cestui que trust possesses a beneficial interest of which she cannot now be deprived by

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexe 207 N.Y.S.-1

attempted revocation; her right having been made absolute upon the creation of the trust. A question of law is thus presented, and its determination depends upon the construction of the instrument by which the trust was thus created.

The trust agreement shows that the trustee named therein was to pay to the plaintiff during her natural life all the interest accruing from the trust, and upon her death the trust was to terminate, and the balance of the estate so held in trust was to be turned over by the trustee to the executors of said plaintiff, as might be named in her last will and testament, which in turn was to be delivered by them to the trustee, likewise to be named in said will, for the benefit of her daughter. It seems that it was also provided that, if the remainder of the estate should not suffice to pay all the bequests made in that will, the executors were to be authorized and empowered to withhold such part of such trust fund as might be necessary to discharge such bequests, before paying the corpus, together with any accumulations, to the trustees under the will for the benefit of the plaintiff's daughter. It was further provided that, in the event that the plaintiff should die intestate or should fail by her last will and testament to dispose of the balance of the estate and the property so held in trust, the trustee under the agreement was directed to transfer, deliver, and pay over the same to the persons who should then constitute the next of kin and heirs at law of the plaintiff in proportion and in the manner as the laws of the state of New York may provide for persons dying intestate.

These provisions, plaintiff contends, indicate an intention that the trust created was not an irrevocable one. The defending trustee, however, and the special guardian for the infant, the cestui que trust, assert that by the provisions of the trust agreement said cestui que trust acquired a vested interest, and to strengthen their position they cite the preamble to the trust agreement, which reads as follows:

"Whereas, the party of the first part is desirous of preserving the principal of the securities hereinafter mentioned and the avails thereof, for the benefit of her daughter, Arline Patricia Boucicault, and to devolve the care and management thereof on the party of the second part, so as to be relieved therefrom, the income thereof to be paid to the party of the first part during her lifetime."

[1] This recital would seem to lend weight to the position of the defendant. However, in construing an instrument of this nature, the court must look to it in its entirety, and must interpret the intention in that manner which would give effect to all the clauses embodied therein. Hill v Philo, 171 App. Div. 962, 160 N. Y. S. 1133; Buffalo East Side R. Co. v. Buffalo St. R. Co., 111 N. Y. 132, 139, 19 N. E. 63, 2 L. R. A. 284 The context of the entire instrument and the intent gathered must not yield to any refinement of language in arriving at a proper translation. In this connection here, the intent and purpose of the creator of the trust need only be considered.

[2] If we read the instrument as a whole, the obvious expression of the intention of the creator of the trust is ascertained. It will be seen that it was created for the sole benefit of the plaintiff until her

(207 N.Y.S.)

death, at which time it was to terminate. This particular estate was then to be held in trust for her daughter, unless the executors were required to retain there from sufficient to complete payment of certain bequests to named parties, and then were to pay the remainder to the trustee under the will for the benefit of the daughter. This would seem to indicate that the cestui que trust did not acquire a vested interest in the trust estate. The provision for the payment to named legatees was inconsistent with and repugnant to the vesting of the estate. Any intention to the contrary, if one may be said to exist by virtue of the expressions contained in the preamble, is unavailing to the defendant, unless that seeming intention was carried into effect by the express provisions of the entire instrument. This was not accomplished. The creator, however, not only made provision for the termination of the trust upon her death and for the payment of the principal to legatees before anything was payable to the trustee for the benefit of the daughter, but in effect made it entirely possible to defeat the very provisions for the benefit of the latter. The further provision that if she died intestate the estate was to follow the process of devolution to her next of kin in such manner as provided by the statute of distribution is but additional evidence of this. She thereby unequivocally indicated her primary and positive intention. Under these circumstances, it cannot be said that the daughter acquired a vested interest. Aranyi v. Bankers' Trust Co., 201 App. Div. 706, 194 N. Y. S. 614; Schwartz v. Fulton Trust Co., 119 Misc. Rep. 831, 198 N. Y. S. 275; Cruger v. Union Trust Co., 173 App. Div. 797, 160 N. Y. S. 480. In the Schwartz Case, supra, Mr. Justice McAvoy, at the Special Term, in a terse, but very able, opinion took occasion to declare that, where a trust deed names the settlor herself as sole beneficiary during her life, she may revoke it at pleasure, even if it recites that it is irrevocable.

I find, therefore, that it was the intention of the plaintiff to create a vested interest in herself only, and that the cestui que trust did not secure that interest which made necessary her consent to terminate the trust. The agreement may be revoked at the will of the moving party, and accordingly this motion is granted. Settle order on two days' notice.