§ 15 Future Estates, Charitable Uses, etc. L. 1909, ch. 45 6. Any such grant may be executed, acknowledged and recorded in the same manner as is now provided by law for the execution, acknowledging and recording of grants of real property. 7. No suit, action or proceedings shall be commenced or maintained by any person to set aside, annul or affect said conveyance, or to affect the title to the property conveyed, or the right to the possession, or to the issues and profits thereof, unless the same be commenced within two years after the date of filing such grant for record; nor shall any defense be made to any suit, action or proceeding commenced by the trustee or trustees named in said grant or their successors, privies or persons holding under them, which defense involves the legality of said grant, or affects the title to the property thereby conveyed, or the right to the possession or the issue and profits thereof, unless such defense is made in a suit, action or proceeding commenced within two years after such grant shall have been filed for record. This section was derived from L. 1892, ch. 516, §§ 1-7, as amended by L. 1905, ch. 393, § 1. The report of the Board of Statutory Consolidation (1907), page 3925, has the following note relating to this section: "This section consolidates L. 1892, ch. 516, §§ 1-7, as amended by L. 1905, ch. 393, § 1, without change, except to limit its application to personal property. The corresponding provisions, in so far as they relate to real property, are carried into the REAL PROPERTY LAW, § 115." Certain grants for charitable uses regulated: see REAL PROPERTY LAW, § 115. § 15. Personal property not alienable in certain cases.1 1. The right of the beneficiary to enforce the performance of a trust to receive the income of personal property, and to apply it to the use of any person, cannot be transferred by assignment or otherwise. But the right and interest of the beneficiary of any other trust in personal property may be transferred. Provided, however, that when the proceeds of a life insurance policy, becoming a claim by death of the insured, are left with the insurance company under a trust or other agreement, the benefits accruing thereunder after the death of the insured shall not be transferable, nor subject to commutation or incumbrance, nor to legal process except in an action to recover for necessaries, if the parties to the trust or other agreement so agree. 1 Section heading formerly read: "When income of trust fund is not alienable." 2 Following sentence new. L. 1909, ch. 45 Future Estates, Charitable Uses, etc. 15 2. The provisions of this section shall not impair or affect any right existing on March twenty-fifth, nineteen hundred and three, 1nor impair or affect the rights of creditors under section fifty-two of the domestic relations law. This section was derived from the Personal Property Law of 1897, § 3, as amended by L. 1903, ch. 87, § 1, with L. 1903, ch. 87, § 2, incorporated. It was amended to read as above by L. 1911, ch. 327. The amendments are given in the footnotes. What trust interest may be alienated: see REAL PROPERTY LAW, § 103. Beneficial interest.— Though every interest which is descendible, devisable, and alienable is a beneficial interest, it does not follow that an interest with none of these attributes is necessarily not a beneficial interest. Cazzani v. Title Guarantee, etc., Co., (1912) 175 App. Div. 369, 161 N. Y. S. 884, affirmed (1917) 220 N. Y. 683 mem. In this case it was held that a contrary intimation in Robinson v. New York Life Ins. etc., Co., (1912) 75 Misc. 361, 133 N. Y. S. 257, was inadvisedly made, and it was held that a vested remainder for life in the income of a trust estate was a beneficial interest. Statutory rule.- Under the present section the beneficiary of a trust is powerless to affect by assignment or otherwise his right to the income of the trust. Central Trust Co. v. Gaffney, (1913) 157 App. Div. 501, 142 N. Y. S. 902, affirmed (1915) 215 N. Y. 740, 109 N. E. 1069; Garrett v. Duclos, (1908) 128 App. Div. 508, 112 N. Y. S. 811, affirming 53 Misc. 140, 104 N. Y. S. 289; Slater v. Slater, (1906) 114 App. Div. 160, 99 N. Y. S. 564, affirmed (1907) 188 N. Y. 633, 81 N. E. 1176; Matter of Kirby, (1906) 113 App. Div. 705, 100 N. Y. S. 155; In re Bishop, (1915) 89 Misc. 355, 151 N. Y. S. 768; Nester v. Nester, (1909) 68 Misc. 207, 118 N. Y. S. 1009, 124 N. Y. S. 974. See also Robb v. Washington, etc., College, (1905) 103 App. Div. 327, 93 N. Y. S. 92. Trust to pay over as equivalent to trust to apply income. A trust to pay over income to a beneficiary is a trust to apply the income to the use of such person within the meaning of the present section. Matter of Nugrich, (1911) 201 N. Y. 415, 94 N. E. 999, reversing order 140 App. Div. 930, 125 N. Y. S. 1148; Leggett v. Hunter, (1859) 19 N. Y. 445, affirming 25 Barb. 81; Leggett v. Perkins, (1849) 2 N. Y. 297. Annuity as within statute.-A trust to pay over a specific sum yearly falls within the statute and is not assignable by the beneficiary. Cochrane v. Schell, (1894) 140 N. Y. 516, 35 N. E. 971, affirming 64 Hun 576, 19 N. Y. S. 424; Rothschild v. Ronx, (1903) 78 App. Div. 282, 79 N. Y. S. 833. Payment of annuity from income and principal. Where a will bequeaths the residuary estate in trust to pay over annunities to each of three beneficiaries named during their natural lives, and the payment of the annuities is not limited to payment out of the income, but payment may be made out of the principal if necessary, the trust is not within the statute. Wells v. Squires, (1907) 117 App. Div. 502, 102 N. Y. S. 597, affirmed (1908) 191 N. Y. 529, 84 N. E. 1122. Partial payments of vested gift as within statute.- Where the residue of a testator's estate is bequeathed to several beneficiaries equally, and the will directs the residuary estate to be converted into money and that a certain specified sum be paid to each of the beneficiaries monthly "until such moneys and interest are fully paid out to them," such gifts to the beneficiaries are vested interests, transferable by them, and are not within the present section of the statute. Matter of Trumble, (1910) 199 N. Y. 454, 92 N. E. 1073, modifying judgment 137 App. Div. 483, 122 N. Y. S. 763. See also in this connection Cocks v. Barlow, (1881) 5 Redf. 406. Prior to the amendment 1 Remainder of sentence new. § 15 Future Estates, Charitable Uses, etc. L. 1909, ch. 45 of 1911 to the present section, relating to the proceeds of life insurance policies, the rules in Matter of Trumble, supra, was applied to payment in instalments of an absolute debt to the beneficiary under the policy. See Black v. New York Life Ins. Co., (1910) 126 N. Y. S. 334. Beneficial interest in principal of trust fund as alienable. Where there is a gift to another without qualification, subject to a trust and subject to be defeated in case of the death of the beneficiary before the termination of the trust, the title to such trust fund, subject only to the contingencies provided by the terms of the gift, is vested in the beneficiary, and his interest is transferable. West v. Burke, (1916) 219 N. Y. 7, 113 N. E. 561, affirming 165 App. Div. 667, 151 N. Y. S. 329. Right of beneficiary of income to principal fund.- Where the will of a testatrix bequeaths her estate in trust to pay the income to her husband, but further directs that whenever her husband shall desire to engage in any business or enterprise, and shall give notice to the trustee that he desires the whole or any part of the principal sum for the purpose the trustee shall pay over and deliver the same to him, the husband takes a vested estate, which is alienable and subject to the claims of his creditors. Ullman v. Cameron, (1904) 92 App. Div. 91, 87 N. Y. S. 148. Right of beneficiary to give power of attorney to collect income. The present section will not permit one who is entitled to the income of a trust estate to give a power of attorney to collect the income to a person who has raised money to meet pressing obligations of the beneficiary. Seely v. Fletcher, (1909) 63 Misc. 448, 117 N. Y. S. 86. Right to assign accumulated income. It has been held that the intent of the statute is the restraint of anticipation of income, and that an assignment of accumulated income may be made by the beneficiary. Matter of Valentine, (1893) 5 Misc. 479, 26 N. Y. S. 716. Income payable to person entitled to next eventual estate after death of life beneficiary as alienable.— Where, upon the death of a life beneficiary under a will establishing a trust, the income becomes payable, by force of section 63 of the Real Property Law and section 11 of the Personal Property Law, to the persons entitled to the next eventual estate, such income is not inalienable under the present section. Ransom v. Ransom, (1910) 70 Misc. 30, 127 N. Y. S. 1027, reversed on other grounds 147 App. Div. 835, 133 N. Y. S. 173. Prohibition as applicable to settlor of trust. The prohibition against alienation in the present section does not apply where the beneficiary of the income is the settlor of the trust, and he may assign or mortgage his interest in the income. Newton v. Hunt, (1909) 134 App. Div. 325, 119 N. Y. S. 3, affirmed (1911) 201 N. Y. 599, 95 N. E. 1134. Applicability of real property rule.- Prior to the present inhibition of assignment by the beneficiary of his interest in a trust for the receipt of income of personal property it had been held in several cases that the statutory prohibition (1 R. S. 730, § 63) against the assignment by beneficiaries of their interests in trusts for the receipt of rents and profits of lands applied, by force of other sections of the statute, to the interest of beneficiaries in similar trusts of personalty. Stringer v. Young, (1908) 191 N. Y. 157, 83 N. E. 690, modifying judgment Stringer v. Barker, (1905) 110 App. Div. 37, 96 N. Y. S. 1052; Cochrane v. Schell, (1894) 140 N. Y. 561, 35 N. E. 971, affirming 64 Hun 576, 19 N. Y. S. 424; Lent v. Howard, (1882) 89 N. Y. 169; Graff v. Bonnett, (1865) 31 N. Y. 9, 88 Am. Dec. 236, affirming 2 Robt. 54, 25 How. Pr. 470. See also Metcalfe v. Union Trust Co., (1905) 181 N. Y. 39, 73 N. E. 498, affirming 87 App. Div. 144, 84 N. Y. S. 183; Cutting v. Cutting, (1881) 86 N. Y. 522, modifying judgment 20 Hun 360. Alienation of vested interest in fund held in trust for another.-Where a fund is given to a trustee to pay the income therefrom to the testator's wife for life and the capital fund is bequeathed to the testator's children after the wife's death, the children take a vested remainder which they can L. 1909, ch. 45 Future Estates, Charitable Uses, etc. § 15 assign and transfer, although the wife is without power to transfer her interest; and such vested interest in the children may be subjected to the claims of their creditors. Bergmann v. Lord, (1909) 194 N. Y. 70, 86 N. E. 828, affirming 122 App. Div. 921, 107 N. Y. S. 1121; Bergmann v. Leavitt, (1906) 113 App. Div. 899, 99 N. Y. S. 748, affirming 51 Misc. 213, 100 N. Y. S. 990. Surplus income as subject to claims of creditors. Section 98 of the Real Property Law (derived from section 57 of the Revised Statutes) provides that "where a trust is created to receive the rents and profits of lands, and no valid direction for accumulation is given, the surplus of such rents and profits, beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, shall be liable in equity to the claims of the creditors of such person in the same manner as other personal property which cannot be reached by an execution at law." It has been held that this provision of the statute is equally applicable to a trust created to receive and pay over the income of personal property; and that an action may be maintained by a judgment creditor after the return of an execution unsatisfied to reach the surplus income beyond what is necessary for the suitable support and maintenance of the cestui que trust and those dependent upon him. Wetmore v. Wetmore, (1896) 149 N. Y. 520, 44 N. E. 169, 52 A. S. R. 752, 33 L. R. A. 708, modifying judgment 79 Hun 268, 29 N. Y. S. 440; Tolles v. Wood, (1885) 99 N. Y. 616, 1 N. E. 251, 16 Abb. N. Cas. 1; Williams v. Thorn, (1877) 70 N. Y. 270; Silliek v. Mason, (1847) 2 Barb. Ch. 79; Hallett v. Thompson, (1836) 5 Paige 583; Matter of Hoyt, (1887) 5 Dem. 432. See also Graff v. Bonnett, (1865) 31 N. Y. 9, 88 Am. Dec. 236, affirming 2 Robt. 54, 25 How. Pr. 470; Campbell v. Foster, (1866) 35 N. Y. 361, affirming 16 How. Pr. 275; Ullman v. Cameron, (1904) 92 App. Div. 91, 87 N. Y. S. 148; Bunnell v. Gardner, (1896) 4 App. Div. 321, 38 N. Y. S. 569; Genet v. Foster, (1859) 18 How. Pr. 50; Scott v. Nevins, (1857) 6 Duer 672. The court has jurisdiction to reach the income of trust property held for the benefit of a husband in favor of a wife who has obtained a divorce to satisfy the provisions of the decree requiring the payment of alimony. Wetmore v. Wetmore, (1896) 149 N. Y. 520, 44 N. E. 169, 52 A. S. R. 752, 33 L. R. A. 708, modifying judgment 79 Hun 268, 29 N. Y. S. 440; Hoagland v. Leask, (1912) 154 App. Div. 101, 138 N. Y. S. 790, affirmed (1915) 114 N. Y. 645, 108 N. E. 1096. Acquisition of remainder by life beneficiary. The acquisition of the remainderman's interest by the beneficiary of the income for life of a trust estate does not enlarge his life estate into absolute ownership of the whole fund. In view of the prohibition of the statute there is no merger of the two estates operating to destroy the trust. Dale v. Guaranty Trust Co., (1915) 168 App. Div. 601, 153 N. Y. S. 1041. Release of income by remainderman under former statute.- Formerly this section contained a provision authorizing the beneficiary in a trust for the receipt of income of presonalty, who was also entitled to a remainder in the whole or a part of the principal fund so held in trust, to release his interest in the income and thereby to terminate the trust. See construing this provision: Metcalfe v. Union Trust Co., (1905) 181 N. Y. 39, 73 N. E. 498, affirming 87 App. Div. 144, 84 N. Y. S. 183; Matter of United States Trust Co., (1903) 175 N. Y. 304, 67 N. E. 614, affirming 80 App. Div. 77, 80 N. Y. S. 475; Connolly v. Connolly, (1907) 122 App. Div. 492, 107 N. Y. S. 185; Phillips v. Pike, (1907) 121 App. Div. 753, 106 N. Y. S. 486; Matter of Hull, (1904) 97 App. Div. 258, 89 N. Y. S. 939; Thall v. Dreyfus, (1903) 84 App. Div. 569, 82 N. Y. S. 691; In re Hogarty, (1901) 62 App. Div. 79, 70 N. Y. S. 839, modifying judgment 34 Misc. 610, 70 N. Y. S. 428; Snedeker v. Congdon, (1899) 41 App. Div. 433, 58 N. Y. S. 885; Oviatt v. Hopkins, (1897) 20 App. Div. 168, 46 N. Y. S. 959; Robinson v. New York Life Ins., etc., Co., (1911) 75 Misc. 361, 133 N. Y. S. 257; In re Gibson, (1903) 42 Misc. 157, § 16 Future Estates, Charitable Uses, etc. L. 1909, ch. 45 85 N. Y. S. 1077; Cruikshank v. Cruikshank, (1902) 39 Misc. 401, 80 N. Y. S. 8; In re Rutherford, (1901) 36 Misc. 314, 73 N. Y. S. 510; In re Barber, (1901) 36 Misc. 433, 73 N. Y. S. 749; Newcomb v. Newcomb, (1900) 33 Misc. 191, 68 N. Y. S. 430. Power to destroy trust.-A court is without power to compel a trustee to consent to a destruction of the trust; nor has the trustee the power to do any act of his own volition which will accomplish such a result. Cuthbert v. Chauvet, (1893) 136 N. Y. 326, 32 N. E. 1088, 18 L. R. A. 745; Douglas v. Cruger, (1880) 80 N. Y. 15. Cited. This section was cited in Hammerstein v. Equitable Trust Co., (1913) 156 App. Div. 644, 141 N. Y. S. 1065, affirmed (1913) 209 N. Y. 429, 103 N. E. 706, in connection with the question of the suspension of absolute ownership. See supra, § 11 note. § 16. Validity of directions for accumulation of income. An accumulation of the income of personal property, directed by any instrument sufficient in law to pass such property is valid: 1. If directed to commence from the date of the instrument, or the death of the person executing the same, and to be made for the benefit of one or more minors, then in being, or in being at such death, and to terminate at or before the expiration of their minority. 2. If directed to commence at any period subsequent to the date of the instrument or subsequent to the death of the person executing it, and directed to commence within the time allowed for the suspension of the absolute ownership of personal property, and at some time during the minority of the persons for whose benefit it is intended, and to terminate at or before the expiration of their minority. 3. All other directions for the accumulation of the income of personal property, not authorized by statute, are void. In either case mentioned in subdivisions one and two of this section a direction for any such accumulation for a longer term than the minority of the persons intended to be benefited thereby, has the same effect as if limited to the minority of such persons, and is void as respects the time beyond such minority. Provided that, the income arising from any personal property granted or conveyed, or bequeathed, in trust to any incorporated college or other incorporated literary institution, for any of the purposes specified in section thirteen of this chapter, or for the purpose of providing for the maintenance of any teacher in a grammar school or institute, may be permitted to accumulate until the same shall amount to a sum sufficient, in the opinion of the regents of the university, to carry into effect any of the charitable |