TRUSTS - RESERVATION OF LIFE INCOME AND POWER OF REVOCATION IN SETTLOR - NOT TESTAMENTARY WITHIN MORTMAIN STATUTE

A settlor purported to set up a trust of certain of his property. In the trust agreement, the settlor reserved to himself the life income from the trust property, with such further amounts from the principal as the trustee, in his absolute discretion, should deem necessary for the settlor\u27s proper maintenance and support; the power, with the approval of the trustee, to revoke or modify the trust; and the life use of the realty encompassed by the trust, on which he was to pay taxes. At the death of the settlor, certain of the trust property was to be administered for specified charitable purposes. The Ohio mortmain statute renders void a devise or bequest made to a charity by will executed within one year of the testator\u27s death. The alleged settlor died within one year of the execution of the trust agreement. In an action for construction of the trust agreement, the court of common pleas held that there was no completed gift by way of the trust since the so-called settlor did not sufficiently part with dominion over the trust property, and that the disposition was testamentary in character. The court of appeals reversed, holding that the transfer was fully consummated in the settlor\u27s lifetime, and that therefore the mortmain statute did not apply. On further appeal, the Supreme Court of Ohio also regarded the reservation of the interestig in the settlor of merely divesting significance and held that the decision of the court of appeals should be affirmed. Cleveland Trust Co. v. White, 134 Ohio 1, 15 N. E. (2d) 627 (1938)