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MATTER CHESTER J. DODGE (07/01/69)

COURT OF APPEALS OF NEW YORK 1969.NY.42320 <http://www.versuslaw.com>; 250 N.E.2d 849; 25 N.Y.2d 273 decided: July 1, 1969. IN THE MATTER OF CHESTER J. DODGE, AS TRUSTEE OF AN EXPRESS TRUST BETWEEN CHESTER J. DODGE, JR., AS SETTLOR, AND CHESTER J. DODGE, AS TRUSTEE. CHESTER J. DODGE, JR., APPELLANT; CHESTER J. DODGE, RESPONDENT; PHILIP A. GRECI, AS GUARDIAN AD LITEM, RESPONDENT Matter of Dodge, 30 A.D.2d 803, affirmed. Counsel John F. LeViness, III and John L. Ryah for appellant. Joseph A. Cox, Shirley Cherin and Robert E. Steinberg for Chester J. Dodge, respondent. Counsel Philip A. Greco, in person, for Philip A. Greco, guardian ad litem for infants, respondent. Scileppi, J. Chief Judge Fuld and Judges Burke, Bergan, Breitel and Jasen concur. Author: Scileppi


Matter of Dodge, 30 A.D.2d 803, affirmed.

Scileppi, J. Chief Judge Fuld and Judges Burke, Bergan, Breitel and Jasen concur.

Author: Scileppi

 The settlor, son of the trustee, established an inter vivos trust on January 24, 1956. As originally executed, the indenture of trust provided that the net income of the trust was to have been distributed to the settlor during his lifetime and, upon his death, the trust was to terminate and the principal was to be distributed to "the issue of the Settlor, him surviving, in equal shares, per stirpes "or, failing any such issue, to the settlor's sisters or their issue or, that line failing, to whomever the settlor should appoint by his will, or failing such appointment, as in intestacy.

Under paragraph 14 of the indenture the "instrument may be altered, amended, or modified by the Settlor at any time or from time to time, but only with the written consent of the Trustee to any alteration, amendment or modification" (emphasis added). Pursuant to this paragraph, the settlor requested and received the permission of the trustee to amend the indenture on April 18, 1963, November 12, 1965 and on January 26, 1966.

As a result of these amendments, the trust now provides that its duration is to be measured by the lives of the settlor's parents (settlor's mother having died on February 11, 1966) and the lives of all of the children and grandchildren of settlor's parents in being on January 24, 1956, the date of the inception of the trust. During the trust term, the trustee is directed to pay net income to the settlor, his son, for life; upon settlor's death, to pay net income to settlor's widow until she die or remarry; upon the death of settlor's widow or her remarriage, or if she fails to survive the settlor, then on settlor's death, to pay net income "to or for the benefit of the Settlor's lawful representative issue * * * in equal shares per stirpes "during their respective lifetimes; and thereafter, or if there be no living issue of settlor, upon his death or his wife's death, as the case may be, to pay net income to the lawful representative issue of settlor's parents, specifically excluding issue who shall be a member of an organized religious order, in equal shares per stirpes.

Upon termination of the trust, the principal is directed to be distributed to the then surviving "lawful representative issue of the Settlor, in equal shares, per stirpes and not per capita". Further alternate disposition of corpus is also provided for: first, "to the then surviving lawful representative issue of the Settlor's parents, excluding any such issue who shall be a member of any organized religious order, in equal shares per stirpes and not per capita "; second, in default of such issue of settlor's parents, then to the appointees designated in settlor's will; third, in default of such valid appointment by settlor, to the living distributees of settlor.

At the present time, settlor's father, the trustee, Chester J. Dodge; settlor, Chester J. Dodge, Jr.; settlor's wife, Tomasine Dodge; settlor's children, Chester Dodge, III, Joan Dodge, Thomas Dodge, Peter Dodge and Kerry Sue Dodge, all infants under the age of 14 years; settlor's sisters, Virginia Dodge, Carol D. Van Doorne and Joan M. Dodge, known in religion as Sister Mary Eucharia; and settlor's niece and nephew, Laurie Van Doorne and Raymond Van Doorne, both infants under the age of 14 years, are alive.

On June 6, 1967 the settlor wrote a letter to the trustee requesting his consent to the revocation of the trust. The trustee, however, refused his consent. Thereafter on September 14, 1967 pursuant to the provisions of EPTL (7-1.9, formerly Personal Property Law, § 23, and Real Property Law, § 118), the settlor, with the properly executed consent of his wife, purported to revoke the trust and sent a notice of revocation to the trustee on October 23, 1967.

The provisions of the statute provide in pertinent part:

"(a) Upon the written consent, acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property, of all the persons beneficially interested in a trust of property, heretofore or hereafter created, the creator of such trust may revoke or amend the whole or any part thereof by an instrument in writing acknowledged or prove in like manner * * *

"(b) For the purposes of this section, a disposition contained in a trust created on or after September first, nineteen fifty-one, in favor of a class of persons described only as the heirs, next of kin or distributees (or by any term of like import) of the creator of the trust does not create a beneficial interest in such persons."

Thereafter, the trustee instituted this proceeding under CPLR article 77 for a determination that his consent was required in order to revoke the trust and that his refusal to consent was reasonable and proper. The settlor interposed an objection in point of law that the trustee's consent was not required; that, since his wife, who consented to the revocation, was the only person beneficially interested in the trust for purposes of EPTL 7-1.9, the trust was validly revoked under that statute.

The court at Special Term held that the trust could not be revoked unilaterally because it merely spoke of alteration, amendment or modification and was silent as to revocation. The court further held that revocation could not be accomplished under the provisions of EPTL 7-1.9 because the settlor's infant children and infant niece and nephew are beneficially interested in the trust and because of their infancy are legally incapacitated to consent to a revocation.

Two primary questions are raised on this appeal: (1) whether the settlor validly effectuated a revocation pursuant to the provisions of EPTL 7-1.9; and (2) whether, under the terms of the trust, the ...


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