
    Annie O. Carrier, Respondent, v. Cassius M. Carrier and The Fidelity Trust Company of Buffalo, Appellants, Impleaded with Frances Elise Carrier, Respondent.
    Fourth Department,
    April 28, 1915.
    Trust — tripartite trust agreement construed — unlawful suspension of power of alienation — estoppel.
    A husband and wife and a trustee entered into an agreement, one of the purposes of which was that the income of a fund, nearly all of which was furnished by the husband, should be used for the maintenance of his family- then consisting of himself, his wife and two daughters, one of whom died some months after the agreement was made. It was further provided that the fund should at all times during the lifetime of the husband be managed and controlled by him, and that in the matter of investment his discretion should be absolute and uncontrolled. In an action by the wife upon the agreement a judgment was entered, practically removing the husband as manager of the trust, and requiring the trustee to keep the fund in its custody, and to give notice to the wife before making any investment other than those permitted by law to be made by executors and trustees.
    Held, that the judgment should be reversed, except so far as it provides for the payment from the fund of a certain sum to the special guardian of the infant daughter, and the complaint dismissed.
    The agreement unlawfully suspended the absolute ownership of the fund and was, therefore, invalid.
    Such agreement cannot be validated by the action or agreement of any of the parties interested.
    The fact that the trust fund was managed under the agreement and successive payments made did not estop the' defendant from asserting its invalidity, because the rights of the parties claiming such estoppel were in no way changed in reliance upon the validity of the contract, so that they would be prejudiced by the assertion of its invalidity.
    
      The fact that the husband upon the trial conceded the validity of the agreement, upon condition that it should not be held to interfere with his free control and management of the fund, did not estop him from asserting its invalidity.
    Appeal by the defendants, Cassius M. Carrier and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 25th day of March, 1914, upon the decision of the court after a trial at the Erie Special Term, and also from an order entered in said clerk’s office on the same day granting plaintiff an extra allowance of $2,000.
    
      Charles B. Sears, Ansley W. Sawyer with him on the brief [Rogers, Locke & Babcock, attorneys], for the appellants.
    
      Adelbert Moot, Helen Z. M. Rodgers with him on the brief [Moot, Sprague, Brownell & Marcy, attorneys], for the respondent Annie O. Carrier.
    
      Thomas R. Wheeler, in person, as guardian ad litem for the respondent Frances Elise Carrier, an infant.
   Per Curiam:

Plaintiff’s cause of action is founded on a tripartite trust agreement, dated July 31, 1903, made by the defendant Cassius M. Carrier, party of the first part, the plaintiff Annie 0. Carrier, party of the second part, and the defendant the Fidelity Trust Company of Buffalo, party of the third part thereto. Cassius M. and Annie 0. Carrier are husband and wife, and the defendant Frances Elise Carrier is their child. It appears .that Cassius M. Carrier furnished practically the whole of the fund with which the agreement is concerned. The fund thus established was a voluntary settlement thereof for the purposes of the agreement. Though by the terms of the agreement the legal title to the fund was to be vested in the Fidelity Trust Company, as trustee, yet it was further provided that the trustee shall not be responsible to anybody or in any manner for the execution of the trust hereby created, saving with respect to the safe preservation of any moneys in its hands belonging to the trust or any securities in its hands belonging to the trust, until the death of the party of the first part.” One of the purposes of the agreement was that the income of the fund was to be used for the maintenance of the settlor’s family, then consisting of himself, his wife, their child, above named, and another daughter, who died some months after the agreement was made. Further expression of the purposes of the agreement appears in the recitals thereof as follows: “ Whereas the parties of the first and second parts desire to make certain provisions to provide against the contingencies of business and to provide further for the welfare of their two daughters * * *; • and, Whereas the party of the first part is willing to create a fund for that purpose, but desires to retain a power of investment and management of the fund so created so long as he shall live,” etc. Though by the agreement it is sought to vest the legal title to the fund in the trustee, satisfaction of the desire of the settlor expressed in the foregoing quotation “ to retain a power of investment and management of the fund ” during his life is amply provided for by express provisions of the agreement which, among other - things of like tenor, direct that the fund “ shall at all times during his lifetime be managed and controlled ” by him; he shall attend to the investment of the fund, “ and in the matter of investment his discretion shall be absolute and uncontrolled. He shall not be limited in respect to the nature of investments by any rules governing investments by executors or trustees, and the trustee shall follow his directions with regard to investments in every particular and without question or demur.” The effect of the agreement in this regard is as stated in the brief of counsel for respondent Annie 0. Carrier as follows: “The provisions of the agreement are such that although the Trust Company is nominally appointed trustee, the settlor of the trust retains the management of the fund during his life, and is the real trustee.” The judgment appealed from, to quote again from the same brief, “practically removes Mr. Carrier as the manager of the trust, and, requires the Trust Company to keep the corpus of the trust in its custody, and to give notice to Mrs. Carrier before making any investment other than those permitted by law to be made by executors and trustees. ”

It is’ apparent that this judgment, which directs the manner in which the agreement is to he executed, cannot he sustained unless the agreement is valid; at least as to the appellants, to an extent necessary to support its provisions. Our examination of the agreement leads us to the conclusion that its effect may be to suspend the absolute ownership of the fund provided for therein for a longer period than during the continuance of two designated lives in being at the date of the instrument. For that reason, if for no other, it is on its face invalid. (Pers. Prop. Law [Gen. Laws. chap. 47; Laws of 1897, chap. 417], § 2; Pers. Prop. Law [Consol. Laws, chap. 41; Laws of 1909, chap. 45], § 11; Matter of Wilcox, 194 N. Y. 288, 295.) We conclude further that its provisions are so interdependent that no one of them is enf orcible as a matter of right at the suit of any party claiming an interest in the fund under the agreement. The respondents, while not conceding the invalidity of the agreement, further insist that, even if it, standing by itself, be invalid yet appellants are estopped, at least for the purposes of this action, from asserting its invalidity for two reasons: 1. That from its execution down to the time of the trial the fund has been held and managed under the agreement and successive payments from income of the fund have been made to or applied for the benefit of plaintiff and her daughter as persons interested in the fund and in furtherance of the trust provisions. 2. That the validity of the agreement was expressly conceded on the trial. As to the first ground upon which an estoppel is claimed we think it sufficient to say that the facts pointed to as constituting an equitable estoppel fail to prove an essential feature of such an estoppel in that they do not show that the relations, the situation, or the rights of the parties now .claiming the estoppel have been in any way changed, surrendered or modified in reliance upon the validity of the contract or the acts of any of the parties thereunder, so that prejudice thereto would result from a present assertion of the invalidity of the agreement. (Bailey v. Buffalo Loan, Trust & Safe Deposit Co., 213 N. Y. 525.)

Considering now the second ground upon which an estoppel is urged, it appears that the trial court made a finding of fact as follows: 25. That the defendant Cassius M. Carrier claims that he has the right under said .trust agreement to use said trust fund as his own money in paying [for] said Florida lands, and intends to use all of said trust fund to make said payments if the same is needed for that purpose; but the validity of said trust was conceded upon the trial of this action by the counsel for said defendant in his presence.” At the request of the defendants, who are now the appellants herein, the court found as a conclusion of law “That the trust agreement of July 31, 1903, is a valid and subsisting instrument, creating a valid trust.” We do not think this agreement, invalid as we conceive it to be for the reasons above stated, can be validated by the action or agreement of any of the parties interested, the conditions upon which its invalidity is predicated remaining unchanged. As was said by Foote, J., in Church v. Wilson (152 App. Div. 844, 852): “Moreover, if the 7th clause of this will could not be sustained because containing an unlawful restraint upon alienation, it could not be validated by agreement of the parties. The statute can no more be violated by agreement of the parties than by will. It represents the public policy of the State, and is not such a statute as may be waived by interested parties on the theory that it was made for their benefit.” (See, also, Bailey v. Buffalo Loan, Trust & Safe Deposit Co., supra, 539.) Nor do we think the appealing defendants conceded in terms on the trial that the agreement was for all the purposes of the action to be treated as valid in every event. It may here be observed that the court does not expressly so find as a fact. It is true as the court finds in effect that during the course of the trial counsel for these defendants said: “I will admit on the record the trust agreement was valid.” This concession, however, seems to have been later in effect limited by the condition that the provisions of the trust agreement should not be held to preclude the right of defendant Carrier to manage the fund exactly as he might choose. In the course of his cross-examination as a witness on the trial the following testimony appears: “Q. If necessary you propose to use it [the fund] unless the Court stops you ? A. I would say so if I needed it. Q. Unless the Court stops you if necessary you propose to use it just the same as though it was your own money ? A. I consider it is my own money. Q. You consider it is your own money ? A. Yes, sir. Q. Just as though the trust had not been made ? A. I feel it is my own money, yes. Q. That is the way you feel about it? A. Yes. Q. And you always have ? A. I never felt I let that get away from me. I thought the condition I had made was so I could use it.” From this testimony and other statements of the witness appearing elsewhere in his examination it would seem that he did not intend to concede the validity of the agreement except upon the condition that it should not be held to interfere with his free control and management of the fund. Such seems to be now his position on this appeal. Though counsel for appellants state in their brief on this appeal that appellants concede the validity of the Trust Agreement,” yet we are also advised by them that no agreement is conceded that would warrant a limitation of Mr. Carrier’s right to manage the fund as he chooses; and, if that contention should prove to be inconsistent with the validity of the contract, then it is contended that Mr. Carrier’s right to manage the fund as he chooses is controlling, even if the con- - tract must fail by reason of such contention. We are, therefore, of the opinion, and so find, that the concession made by the appealing defendants that the agreement was valid was intended to he and was in effect only that the validity of the agreement would not be questioned in the action provided that the right which appellant Carrier claims to manage and control the fund exactly as he chose should not be held to be in any mauner limited by the agreement if regarded as a valid trust agreement. So interpreted, the concession could not operate as an estoppel preventing the assertion of the invalidity of the agreement.

The judgment should he reversed, except so far as it provides for the payment from the fund of the sum of $400, allowed to the special guardian of the infant defendant, and judgment dismissing plaintiff’s complaint directed, with costs of this appeal to be paid the special guardian from the fund in question in this action, and without costs to any other party. The order granting plaintiff an additional allowance should also be reversed.

All concurred.

Judgment reversed, except so far as it provides for the payment from the fund of the sum of $400, allowed to the special guardian of the infant defendant; findings modified as stated in the opinion, and judgment dismissing plaintiff’s complaint directed, with costs of this appeal to he paid to the special guardian from the fund in question in this action and without costs to any other party. Order granting additional allowance reversed.  