1919.] Opinion, per COLLIN, J. [225 N. Y.] State ex rel. Board of Education of St. Louis v. Nast, 209 Mo. 708, 731; State ex rel. Beekley v. McDonald, 123 Minn. 84; Orr v. Jackson, 149 Iowa, 641; State ex rel. Brandegee v. Clements, 52 Montana, 57.) A few of the states declare the doctrine that the cause of the restraint determines whether the proceeding be civil or criminal. If the applicant for the writ be restrained by reason of the commission of a crime or of a criminal charge it is criminal; if otherwise it is civil. (Legate v. Legate, 87 Texas, 248; Gleason v. Board of Commissioners of McPherson County, 30 Kansas, 53.) The legislature of this state has classified the proceeding as a civil proceeding. The Code of Civil Procedure enumerates the writ as a state writ (Section 1991), and contains elaborate provisions regulating the exercise of the common-law power to issue and adjudge it (Sections 2015-2066), including those relating to rights of appealing (Sections 2058-2064; People ex rel. Hubert v. Kaiser, 206 N. Y. 46). It is a special proceeding (Sections 3333, 3334). The title relating to state writs is designated, Special Proceedings instituted by State writ," and sections within the title frequently refer to such proceedings as special. It is a civil special proceeding (Section 3343, subdiv. 20). The Code of Criminal Procedure defines "Special proceedings of a criminal nature." (Section 2; part VI.) The proceeding by writ of habeas corpus is not one of the special proceedings of a criminal nature, and, assuredly, it is not within the definition of a criminal action. (Code of Civil Procedure, sections 3335, 3336, 3337; Code of Criminal Procedure, section 5.) The Code of Criminal Procedure does not contain a provision authorizing or permitting an appeal to the Appellate Division from the final order in the habeas corpus proceeding (Sections 515, 517, 749, 750), and it applies only to criminal actions, and all other proceedings in criminal cases which are therein provided [225 N. Y.] Opinion, per COLLIN, J. [Jan., for (Section 962). The proceeding by writ of habeas corpus is not therein provided for and is not thereby classified as a special proceeding of a criminal nature. (People ex rel. Taylor v. Forbes, 143 N. Y. 219.) While the legislative classification is not controlling, because the legislature cannot, in such manner, create or destroy the actual nature of an action or proceeding, it is very significant and is in accord with the highest judicial opinion. We hold that the proceeding by the writ of habeas corpus to inquire into the cause of the detention of a person is a civil special proceeding to enforce a civil right, although its purpose is to effect the release of the person from imprisonment or custody under a criminal prosecution. Legislative enactments prescribing and defining the rights of appeal are with us imperative. We have no jurisdiction to hear an appeal unless it is conferred by statute. Courts which are created by written law, and whose jurisdiction is, as is ours, defined by written law, cannot transcend that jurisdiction. This is the established rule in all actions and proceedings, civil or criminal or of a criminal nature. (People ex rel. Commissioners of Charities v. Cullen, 151 N. Y. 54.) Section one hundred and ninety forbids us from reviewing the order here appealed from. There is no merit in the appellant's assertion and argument that this proceeding directly involved the construction of the Constitution of the state. He avers that he is held in imprisonment by virtue of a sentence and judgment which the court had not the power to render and, therefore, are void. Whether or not the court had the power is determinable only through the interpreting of statutes. The meaning and not the validity of the statutes is involved. In a certain sense, perhaps, each enforcement of a statute by a court involves its constitutionality or the construction of the Constitution of the state. That sense, 1919.] Statement of case. [225 N. Y.] however, was not within the legislative mind or intention in enacting the present restriction of our jurisdiction. An appeal, upon the ground the appellant here asserts, must present to us directly and primarily an issue determinable only by our construction of the Constitution of the state or of the United States. (People ex rel. Moss v. Supervisors of Oneida Co., 221 N. Y. 367; Matter of Haydorn v. Carroll, 225 N. Y. 84.) The appeal should be dismissed but, as the costs are discretionary (Code of Civil Procedure, sections 3240, 2007; Matter of Holden, 126 N. Y. 589; Matter of Teese, 32 App. Div. 46; Matter of Barnett, 11 Hun, 468), without costs. HISCOCK, Ch. J., CHASE, CUDDEBACK, CArdozo, POUND and ANDREWS, JJ., concur. Appeal dismissed. AUGUSTA DOCTOR et al., Appellants, v. AUGUSTUS S. HUGHES et al., Respondents, and JAMES FRANK, as Trustee in Bankruptcy of ELIZABETH L. HUGHES, Appellant, Impleaded with Another. trust conveying real property to trustee to pay income thereof to grantor with directions to convey to grantor's heirs upon his death — when such trust does not transform the reversion to grantor's heirs into a remainder. 1. Where there was no adequate disclosure of a purpose in the mind of a grantor, who created a trust, to vest his presumptive heirs with rights which it would be beyond his power to defeat, and the grant by its terms was subject to destruction at the will of the trustee, it was also subject to destruction, as against the heirs at law, at the will of the grantor. They had an expectancy but no estate. [225 N. Y.] Statement of case. [Jan., 2. Where an express trust is created, every legal estate and interest not embraced in the trust, and not otherwise disposed of, shall remain in or revert to the person creating the trust or his heirs (Real Property Law, § 102), and where the owner of real property conveyed it to a trustee to pay to grantor a certain sum from the rents and profits and also some debts and mortgages on the property, the trustee to have power to mortgage for the payment of liens and also to sell or reconvey to the grantor, and upon the death of the grantor the property, if not sold, to be conveyed to his heirs at law, or, if sold, the remainder of the proceeds of sale to be paid to them, such trust did not create a life estate in the trustee with remainder over to the heirs of grantor. His heirs at law, if they receive anything on his death, will take by descent and not by purchase, and hence there is nothing that creditors of such heirs can seize. Doctor v. Hughes, 174 App. Div. 767, affirmed. (Argued December 10, 1918; decided January 14, 1919.) APPEAL from a judgment entered December 12, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The nature of the action and the facts, so far as material, are stated in the opinion. M. G. Holstein for plaintiffs, appellants. Under the deed of trust made by her father, the defendant Elizabeth L. Hughes is a person in being who would have an immediate right to the possession of one-half of the trust estate on the determination of the precedent estate by the death of her father, and her interest, whether vested or contingent, is descendible, devisable and alienable in the same manner as an estate in possession. (Moore v. Littel, 41 N. Y. 66; Clowe v. Seavey, 208 N. Y. 496; Jackson v. Sheridan, 50 N. Y. 660; Jackson v. Littell, 56 N. Y. 111; House v. McCormick, 57 N. Y. 316; Smith v. Scholtz, 68 N. Y. 61; Kelso v. Lorillard, 85 N. Y. 1919.] Points of counsel. [225 N. Y.] 184; Surdam v. Cornell, 116 N. Y. 309; Campbell v. Stokes, 142 N. Y. 30; Losey v. Stanley, 147 N. Y. 567; Matter of Dows, 167 N. Y. 233; Dougherty v. Thompson, 167 N. Y. 487; Baltes v. Union Trust Co., 180 N. Y. 187; Matter of Easterly, 202 N. Y. 474.) The interest of the defendant Elizabeth L. Hughes under the deed of trust executed by her father constitutes " property " held in trust for her within the meaning of article 1, title 4, chapter 15, of the Code of Civil Procedure, and this action in equity is properly brought to reach the same. (Bergmann v. Lord, 194 N. Y. 70; Degraw v. Clason, 11 Paige, 136; Stringer v. Young, 191 N. Y. 157; Smith. v. Edwards, 88 N. Y. 92; Ham v. Van Orden, 84 N. Y. 257; Williams v. Thorn, 70 N. Y. 270; Wetmore v. Truslow, 51 N. Y. 338; Burrill v. Sheil, 2 Barb. 457; Lawrence v. Bayard, 7 Paige, 70; Hallett v. Thompson, 5 Paige, 583; Zarthan v. Ditmars, 37 App. Div. 173.) James Frank for defendant, appellant. The interest of the defendant Elizabeth L. Hughes under the deed of trust made by her father constituted "property" and, subject to the life estate of her father, she had an undivided one-half interest in the corpus of the trust, her interest being either vested or contingent. In either case, it was "property" and her conveyance on June 12, 1902, to her husband, the defendant Augustus S. Hughes, constituted a transfer of property. (Clowe v. Seavey, 208 N. Y. 496; Moore v. Littel, 41 N. Y. 66; Ham v. Van Orden, 84 N. Y. 257; Beardsley v. Hotchkiss, 96 N. Y. 201; Dodge v. Stevens, 105 N. Y. 585; Griffin v. Shepard, 124 N. Y. 70; Matter of Pell, 171 N. Y. 48; Roosa v. Harrington, 171 N. Y. 341; Baltes v. Union Trust Co. of N. Y., 180 N. Y. 183; Nat. Park Bank v. Billings, 144 App. Div. 536; 203 N. Y. 556; Bergmann v. Lord, 194 N. Y. 70.) Such interest of the defendant Elizabeth L. Hughes under the deed of trust made by her father |