298 N.Y.S.2d 26 (1969)

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A trust provision granting a settlor the right to amend the trust with the trustee’s consent does not grant the settlor the right to unilaterally revoke the trust under EPTL 7-1.9 without the trustee’s consent and without the consent of all beneficiaries with a present beneficial interest.

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Summary

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Chester Dodge, Jr. (the settlor) created an inter vivos trust with his father, Chester Dodge (the trustee). The trust allowed the settlor to amend the trust with the trustee’s written consent. Years later, the settlor attempted to revoke the trust under EPTL 7-1.9, arguing that his wife was the only person beneficially interested and had consented. The trustee argued his consent was required and that the settlor’s children had a beneficial interest, requiring their consent, which they could not give as infants. The court held the trust was not validly revoked because the trustee’s consent was required, and the settlor’s children had a beneficial interest requiring their consent.

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Facts

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On January 24, 1956, Chester Dodge, Jr., established an inter vivos trust, naming his father, Chester Dodge, as trustee.r
The original trust indenture provided income to the settlor for life, and upon his death, the principal would be distributed to his surviving issue, or if none, to his sisters or their issue, or as the settlor appointed in his will, or failing that, as in intestacy.r
Paragraph 14 of the indenture allowed the settlor to alter, amend, or modify the instrument, but only with the written consent of the trustee.r
The settlor amended the trust with the trustee’s consent on April 18, 1963, November 12, 1965, and January 26, 1966.r
These amendments changed the trust’s duration to be measured by the lives of the settlor’s parents and all children/grandchildren of the settlor’s parents living on January 24, 1956.r
The amended trust directed the trustee to pay income to the settlor for life, then to his widow until death or remarriage, then to the settlor’s lawful representative issue per stirpes, and then to the lawful representative issue of settlor’s parents (excluding members of religious orders).r
Principal distribution upon termination was to the settlor’s surviving lawful representative issue per stirpes. Alternate dispositions were specified if no surviving issue existed.r
In 1967, the settlor requested the trustee’s consent to revoke the trust, but the trustee refused.r
The settlor, with his wife’s consent, purported to revoke the trust under EPTL 7-1.9 and sent a notice of revocation to the trustee.r

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Procedural History

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The trustee initiated a proceeding under CPLR Article 77 for a determination that his consent was required to revoke the trust and that his refusal was reasonable and proper.r
The settlor objected, arguing that the trustee’s consent was not required and that his wife’s consent was sufficient under EPTL 7-1.9.r
Special Term held that the trust could not be unilaterally revoked because the trust instrument was silent as to revocation, only speaking of alteration, amendment or modification. Further, the court held that the revocation could not be accomplished under EPTL 7-1.9 because the settlor’s infant children and niece/nephew were beneficially interested and could not consent due to their infancy.r
The settlor appealed.r

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Issue(s)

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1. Whether the settlor validly effectuated a revocation pursuant to the provisions of EPTL 7-1.9?r
2. Whether, under the terms of the trust, the consent of the trustee is needed in order to revoke?r

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Holding

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1. No, because the term “surviving lawful representative issue” is not a term of like import with heirs, next of kin, or distributees under EPTL 7-1.9, meaning the settlor’s children have a beneficial interest requiring their consent, which they cannot give as infants.r
2. Yes, because the trust instrument implicitly, if not expressly, requires the trustee’s consent to a revocation.r

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Court’s Reasoning

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Regarding Issue 1, the court reasoned that EPTL 7-1.9 allows a trust creator to revoke a trust with the consent of all persons beneficially interested. The statute excludes a disposition to a class described as heirs, next of kin, or distributees (or similar terms) of the creator.r
The court distinguished the present case from the doctrine of worthier title, as discussed in Doctor v. Hughes, which the statute aimed to address. The legislative history of EPTL 7-1.9 shows it was intended to overrule Doctor v. Hughes, which created uncertainty regarding whether dispositions to