390 Mass. 864, 460 N.E.2d 572 (1984)
Mary A. Sullivan, the widow of Ernest G. Sullivan, exercised her right under G. L. c. 191, § 15, to take a share of her husband’s estate.1 She filed an action in the Probate Court for Suffolk County seeking a determination that assets held in an inter vivas trust created by her husband during the marriage should be considered part of his estate.2 A judge of the Probate Court rejected the widow’s claim and entered judgment dismissing the complaint.3
In September 1973, Ernest G. Sullivan executed a deed of trust transferring real estate to himself as sole trustee.4 The net income of the trust was payable to him during his life, and the trustee was instructed to pay to him all or such part of the principal as he might request in writing from time to time.5 He retained the right to revoke the trust at any time.6 On his death, the successor trustee was directed to pay the principal and any undistributed income equally to George F. Cronin, Sr., and Harold J. Cronin, who survived him.7
Ernest G. Sullivan died on April 27, 1981, while still trustee of the inter vivas trust.8 He left a will stating that he intentionally neglected to make any provision for his wife Mary A. Sullivan and his grandson Mark Sullivan, and directing that the residue of his estate be paid over to the trustee of the inter vivas trust.9 The defendants George F. Cronin, Sr., and Harold J. Cronin were named coexecutors of the will, and the defendant Burkin is successor trustee of the inter vivas trust.10 On October 21, 1981, Mary A. Sullivan filed a claim pursuant to G. L. c. 191, § 15, for a portion of the estate.11
The parties state that Ernest G. Sullivan and Mary A. Sullivan had been separated for many years, and in 1962 the wife obtained a court order providing for her temporary support.12 At his death the husband owned personal property worth approximately $15,000, and the only asset in the trust was a house in Boston sold after his death for approximately $85,000.13 The widow appealed, and on July 12, 1983, a panel of the Appeals Court reported the case to the Supreme Judicial Court.14
Whether the inter vivos trust created by Ernest G. Sullivan was testamentary in character?15
A trust is not testamentary and invalid for failure to comply with the requirements of the Statute of Wills merely because the settlor-trustee reserves a beneficial life interest and power to revoke and modify the trust.16 The fact that as trustee he controls the administration of the trust does not invalidate it.17
No. Ernest G. Sullivan transferred real estate to himself as sole trustee under a deed of trust that provided remainder interests to others upon his death.18 Although he retained the right to receive income, invade principal, modify or revoke the trust, and served as sole trustee, these retained powers and his role as trustee do not render the trust testamentary. The court followed precedents holding such arrangements valid and applied the Restatement principle that a trust is not invalid for failure to comply with the Statute of Wills merely because the settlor-trustee reserves those interests and powers.19
The inter vivos trust created by Ernest G. Sullivan was not testamentary in character.20
Whether the assets held in the inter vivos trust should be considered part of the estate of the deceased in determining the portion to which the surviving spouse is entitled under G. L. c. 191, § 15?21
The right of a wife to waive her husband’s will and take a portion of the estate does not extend to personal property that has been conveyed by the husband in his lifetime and does not form part of his estate at his death.22 This is true even though his sole purpose was to disinherit her and applies to assets placed in an inter vivas trust over which the settlor had a general power of appointment.23
No. Ernest G. Sullivan created the inter vivas trust during the marriage and retained substantial rights and powers under the trust instrument, including the right to revoke the trust and to direct disposition of the assets for his benefit.24 The court adhered to the rule of Kerwin v. Donaghy and held that Mary A. Sullivan obtained no right to share in the assets of that trust when she made her election under G.
L. c. 191, § 15, even though the husband had a general power of appointment over the trust assets.25 The judgment of the Probate Court dismissing the plaintiff’s complaint is affirmed.26
The assets held in the inter vivas trust should not be considered part of the estate of the deceased in determining the portion to which the surviving spouse is entitled under G. L. c. 191, § 15.27