
    In re LEDEICH’S ESTATE.
    (Supreme Court, General Term, Fifth Department.
    April 13, 1893.)
    1. Deed—1Transfer of Personalty.
    Though a will devising land to an executor in trust to seU the same, and divide the proceeds among testator’s children, may work an equitable conversion of the realty into personalty, the children are the equitable owners of the personalty, and their respective shares may be transferred by deed.
    2. Trusts—Dealings between Trustee and Cestui Que Trust.
    A deed by a devisee of one of the children, conveying his interest in the trust estate to the executor, is not invalid, under the rule prohibiting a trustee from dealing with the trust estate, where it appears that the grantor was of full age, and stood on an equal footing with the executor.
    '8. Estoppel—Pleading against Deed.
    Where, after the executor’s death, his executrix files her petition for the settlement of the trust estate, an allegation in such petition that the grantor in the deed is interested in the settlement cannot alter the effect of the deed, which estops him from claiming any further interest in the estate.
    Appeal from surrogate’s court, Erie county.
    Petition by Charles Lang to compel Charlotte Schumacher, executrix, etc., of Conrad Schumacher, deceased, who was the executor of the last will and testament of Frederick Ledrich, deceased, to account for the proceedings of Conrad Schumacher as such executor. From a decree dismissing the petition, the petitioner appeals.
    Affirmed.
    On the 17th day of November, 1857, the last will and testament of Frederick Ledrich, deceased, was proved and admitted to probate by the surrogate of the county of Erie, and letters testamentary thereon were issued to Conrad Schumacher. The will provides as follows: “First. I order and direct that all my just debts and funeral expenses be paid by my executor hereinafter named as soon after my decease as conveniently may be. Second. I give and devise all my real and personal estate, of what nature or kind soever, to Conrad Schumacher, the executor of this, my last will and testament, hereinafter nominated and appointed, in trust for the payment of my just debts and the legacies above specified, with power to sell and dispose of the same at public or private sale at such time or times, and upon such terms and in such manner, as to him shall seem meet, and, until the sale of such real estate, to rent the real estate for the best rents that can be procured. And the proceeds of such sale is to be divided equally between my children, share and share alike, which said several legacies or sums of money 1 direct and order to be paid to my sons Frederick and Louis within ten years after ray decease, and to my other children, Salomea, Henry, Sophia, Philip, and Charlotte, when they have respectively arrived at the age of twenty-one years. On account of my two sons Frederick and Louis having forsaken me in my eld age and sickness, I order and direct that1 the interest that may accrue on their shares be divided between the rest of my children in equal shares. Third. I give and devise to my wife one cow, one cupboard, one clock, one bed, and such other furniture as the law directs, or as a widow is entitled to. Fourth and lastly. I nominate and appoint Conrad Schumacher solo executor of this, my last will and testament, hereby revoking all other wills by me made. . In witness whereof, I have hereunto set my hand and seal this first day of July, A. D. 1857.” In 1860, Salomea Lang, who was the wife of the appellant, and one of the daughters of the testator, petitioned the surrogate for an accounting by Conrad Schumacher as such executor. But pending such proceedings she died, leaving a last will and testament, which was admitted to probate February 5, 1861, in and by which- she devised and bequeathed her estate to the appellant, her husband. The proceedings upon such accounting were continued and terminated in a decree of the surrogate’s court dated February 6, 1861, wherein Conrad Schumacher, as executor, was charged with the balance in his hand, 8-123.95. and was directed by such decree to apply the same towards the discharge of a mortgage upon the real estate left by the testator. On the 20th day of December, 1862, Charles Lang, the appellant, conveyed all Ms estate, title, and interest in the real estate left 'by the testator to Conrad Schumacher, ifi consideration of the sum, as mentioned in the deed, of §250. In the year 1865 the real estate of the testator was sold by his executor, and subsequently, and in the year 1874, the proceeds thereof were distributed among the testator’s children, with the exception of the share of Louis Ledrich. On the 24th day of September, 1887, Conrad Schumacher executed his last will and testament, and shortly thereafter died. His will was admitted to probate on the 10th day of January, 1888, and letters thereon were issued to Charlotte Schumacher. In the month of April, 1890, Charlotte Schumacher, as executrix, petitioned the surrogate’s court for a settlement of the accounts of Conrad Schumacher as executor of the last will and testamejit of Frederick Ledrich, and in such petition stated that the only person interested m the settlement was Charles Lang. That on the 7th day of April, 1890, a citation was issued, directed to said Lang, reqmring Mm to appear upon the settlement of the accounts of Conrad Schumacher as executor, and such citation was served upon the said Lang; but nothing further appears to have been done thereon. Subsequently, Willis C. Jaeus, as admimstrator of Louis Ledrich, deceased, presented to the surrogate’s court a petition for the judicial settlement of the accounts of Conrad Schumacher, and such proceedings were had thereon that a decree was entered by that court on the 9th day of March, 3891, finally settling such accounts. But the appellant, Lang, was not cited to appear, and did not appear, in such proceedings. The surrogate found, as conclusions of law: “First. That the said deed from Charles Lang, of his interest in the farm belonging to the Ledrich estate to Conrad Schumacher, is binding upon the said Lang, and operates as an absolute estoppel. Second. That, more than six years having elapsed since the right to commence tMs proceeding accrued, the same is barred by the statute of Ihmtations,”—and concluded by ordering the proceedings dismissed.
    
      Argued before DWIGHT, P. J., and LEWIS, MACOMBER, and HAIGHT, JJ.
    Angust Becker, for appellant.
    Frederick Howard, for respondent.
   HAIGHT, J.

The decree of the surrogate, of February 6, 1861, entered upon the accounting of the executor, finally settled and disposed of the personal estate .of the testator. This was expressly conceded upon the argument, and such was doubtless the effect of the decree. That being so, there remained only the real estate, and the rents, issues, and proceeds thereof, to be accounted for. The first transaction, after the settlement of the personal estate, disclosed by the record, is the deed of Charles Lang to Conrad Schumacher, dated December 20, 1862, in which Lang conveys all of his estate, title, and interest in the real estate left by the testator. As the devisee and legatee of his deceased wife, he had become vested with all of the right, title, and interest that she had in the estate of her deceased father. Under the will, Ledrich had given the real estate to Schumacher, the executor, but in trust, with power to sell the same, and divide the proceeds equally among his children. The legal title was thus vested in the trustee. But he held it for the benefit of the children, and the proceeds belonged to them. They were the equitable owners. Lang, being one of such equitable owners, and entitled to a share of the proceeds, executed the deed in question. In it he undertook to convey all his estate, title, and interest. It is contended that he was not the owner, and therefore he conveyed nothing. True, he was not the legal owner, but, as we have shown, he was the equitable owner, and had an interest in the proceeds, which he could convey or release.

Again, it is said that the will, devising the real estate of the executor, with directions for it to be sold, worked an equitable conversion of the realty into personal property. Suppose this to be so. It is not, however, apparent how the rights of the parties would be changed. The children would still be the equitable owners, entitled to the proceeds; and we know of no rule that prevents-the "transfer of personal property by deed. We are aware of the doctrine that prohibits a trustee from dealing with trust property for his own benefit. He will not be permitted to take advantage of his cestui que trust; but where the cestui que trust, is of full age, and stands upon an even footing with the trustee, we see no reason why he may not settle with the trustee, for a consideration, and either release or convey his interest in the-trust estate.- It appears to us that the appellant, by the deed to Schumacher, undertook to convey his interest in the estate to Schumacher -for the consideration of $250, which sum he admitted was paid to him, and that by reason thereof he is now estopped from claiming any further interest in the estate.

Mrs. Schumacher petitioned the surrogate for a settlement of the accounts of Conrad Schumacher in April, 1890, and in such petition stated that Lang had an interest in such settlement. She doubtless then supposed him to be interested. But it is not apparent how her supposed interest of Lang in the estate can change or alter the effect of his deed.

These views render it unnecessary to consider the question raised under the statute of limitations.

The decree should be affirmed, with costs. All concur.  