
    Helen F. Woodbridge, as Substituted Trustee under the Last Will and Testament of Samuel Freeman, Deceased, Appellant, v. Augustus Bockes, Respondent.
    
      Trust—a power of disposition by will given to a cestui que trust does not authorize a transfer during her life — a release executed by remaindermen precludes an action by the life cestui que trust in their behalf— effect of a release by the cestui que trust—when the cestui que trust is estopped and ba/rred by laches to maintain an action against the trustee.
    
    The will of a testator gave his residuary estate to the executor in trust, “ to receive~the rents, profits and annual avails thereof and to apply them to the use - of my only daughter, Mrs. Helen Woodbridge, wife of the Rev. John Woodbridge, during her natural life, not, however, to exceed in the aggregate the annual sum of three thousand five hundred dollars; intending that such rents, profits and avails, to and not exceeding the aforesaid annual amounts of three thousand five hundred dollars, shall be given and paid over to my said daughter annually in semi-annual payments as her own separate property, to be expended and used by her according to her own wishes. And, secondly: On the decease of my said daughter the trust fund and property to go and belong to her child or children, if more than one, in equal parts, the same in all respects as if she had been the absolute owner thereof in her own right and had died intestate and unmarried; and in case my said daughter shall die leaving no child or descendant of any child her surviving, then and in that case said trust fund and property to go and belong to my next of kin and heirs at law the same in all respects as if I had died intestate holding and owning the same. • But it is my will and purpose, and I so here declare and direct, that my said daughter, if she so desire, shall he at liberty by a last will and testament duly executed by her, to give and bequeath from said trust fund and property a sum and amount, not exceeding one-half of such trust fund and property, to whomsoever she may choose and as  may choose; and the above provisions of my said will are to be deemed qualified in so far as may be necessary by this right and privilege given and extended to my said daughter.”
    The testator was survived by his daughter Helen Woodbridge, who, at the time óf his death, had two infant children. The letters testamentary under his will were'issued December 24, 1870, and the executor thereupon entered upon the discharge of his duties as executor and trustee. He made a full and complete inventory of the estate and then, with the oral sanction of Mrs. Helen Wood-bridge, allowed her husband to retain the trust securities and manage the trust estate until June 28, 1872. On the last-mentioned .date the trustee, with the written authority of Mrs. Helen Woodbridge, executed a power of attorney to her husband authorizing him to take possession of the trust property and to use, manage and control the same. Mrs. Woodbridge also executed an instrument reciting that she ratified and approved the said power of attorney and that her husband was also to be deemed her agent and attorney in all matters and things to be done thereunder. The balance in the account of the trustee was thereupon deposited to the individual credit of Mrs. Woodbridge and thereafter the account was kept in her name until December 19, 1874, from which time it was kept in the name of her husband. From the time the power of attorney was executed until September 12, 1889, the business was conducted by the husband of Mrs. Woodbridge with her knowledge and approval.. On that date Mrs. Woodbridge and her two children, who were then of age, executed and delivered to the trustee a release from all liability arising or thereafter to arise out of his executorship and trusteeship. Thereafter Mrs. Woodbridge managed the trust estate exclusively and the trustee took no part therein.
    June 9, 1894, the trustee and thechildren of Mrs. Woodbridge joined in a petition praying that the trustee’s resignation be accepted and that Mrs. Woodbridge be appointed substituted trustee. The court made an order accepting the resignation and appointed Mrs. Woodbridge substituted trustee. The accounts of the trustee were never judicially settled.
    Mrs. Woodbridge made no complaint as to the manner in which the trust estate had been administered until in May, 1897, when she began an action as substituted trustee against the original trustee to charge him with a deficit in the trust fund. It appeared that such deficit Was caused by the fact that in 1872 the husband of Mrs. Woodbridge, with her knowledge and acquiescence, used 850,000 of the trust fund for the purchase of a family residence, and by the fact that he had made some unprofitable investments. The children of Mrs. Wood-bridge were not, made parties to the suit, and it did not appear that they had ever taken any steps to revoke or cancel the release executed by them.
    
      
      Held, that the power given to Mrs. Woodbridge to dispose of one-half of the trust property by will related to the remainder only and did not empower her to use or transfer any part thereof during life;
    That the provisions of the Revised Statutes, that when an absolute power of disposition, not accompanied by any trust, has been given to the owner of a par- . ticular estate for life or for years, such estate shall be changed into a fee, and where a general and beneficial power to devise the inheritance shall be given to a tenant for life or for years, such tenant shall be deemed to possess an absolute power of appointment, do not apply to a beneficiary of rents and profits who is prohibited from alienating his future income;
    That Mrs. Woodbridge could not maintain the action for the benefit of her children as the release executed by the latter to the defendant was presumptively binding upon them;
    That, under the circumstances of this case, the court would not in this action undertake to protect the interests' of the contingent remaindermen (other than plaintiff's children), but would leave them to an action for the protection of their own interests;
    That the release executed by the plaintiff was effectual to bar any right of action on her part for accrued income;
    That, having induced the defendant to commit the breach of trust, and having acquiesced therein for twenty-five years, Mrs. Woodbridge was precluded by the doctrine of estoppel and by lachea from maintaining the action in order that she might receive her semi-annual income in the future.
    Appeal by the plaintiff, Helen F. Woodbridge, as substituted trustee under the last will and testament of Samuel Freeman, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Sara-toga on the 13th day of December, 1899, upon the decision of the court rendered after a trial at the Saratoga Special Term dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 11th day of December, 1899, granting to the defendant an extra allowance.
    This appeal was transferred from the third department to the fourth department.
    This is a suit in equity to obtain an accounting by defendant as trustee under the will of Samuel Freeman, deceased. The will was executed on the 17th day of Hay, 1870, and, after bequeathing certain legacies and annuities, it provided as follows: “ All the rest, residue and remainder of my property, estate and effects of every name, nature and description and wheresoever situated I do give and devise to the executor hereof and hereinafter named and to his successor in trust, however, and to and for the following uses and purposes, to wit: To receive the rents, profits and annual avails thereof and to apply them to the use of my only daughter, Mrs. Helen Woodbridge, wife of the ReV. John Woodbridge, during her natural life, not, however, to exceed in the aggregate the annual sum .of three thousand five hundred dollars; intending that such rents, profits and avails to and not exceeding the aforesaid annual amounts of three thousand five hundred dollars shall be given and paid over to my said daughter annually in semi-annual payments as her own .separate property, to be expended and used' by her according to her own wishes. And, secondly: On the, decease of my said daughter the trust fund and property to go and belong to her child or children, if more than one, in equal parts, the same in all respects as if she- had been the absolute owner thereof in her own right and had died intestate and unmarried; and in case my said daughter shall die leaving no child or descendant of any child her surviving,. then and in that case said trust fund and property to go and belong to my next of kin and heirs at law the same in all respects as if I had died intestate holding and owning the same. But it is my will and purpose, and I so here declare and direct, that my said daughter, if she so desire, shall be at liberty by a last will and testament duly executed by her, to give and bequeath from said trust fund and property a sum and amount, not exceeding one-half of such trust fund and .property, to whomsoever she may choose and as may choose; and the above provisions of my said will'are to be deemed qualified in so far as may be necessary by this right and .privilege given and extended to my said daughter.” The will then appointed defendant executor and trustee on condition that he should accept the trust at an annual compensation of $500, without further charge for services, commissions or expenses; and, in the event of his declining to accept, or in case of his decease or inability to. act for any reason, it provided for the appointment of an executor, or trustee by the Supreme Oourt or a justice thereof, who should fix and approve the security to be given on such appointment. The trustee was expressly authorized in his discretion, with the consent in writing of testator’s daughter, to sell and convey the real property held by him in trust or any part thereof. The testator died on. the 19th day of December, 1870. His will was admitted to probate on the 24th day of December, 1870, and letters testamentary were on that day issued to defendant, who thereupon entered upon the discharge of his duties as executor and trustee. The trust estate under the residuary clause of the will hereinbefore quoted consisted of real property, not exceeding $10,000 in value, and personal property of the value of about $100,000. The daughter of testator survived him. She was his only child and at that time had two infant children, Freeman, born June 2, 1866, and Helen F., born December 17, 1867,. botli of whom are still living and they are her only issue. Testator’s said granddaughter, Helen F. Woodbridge, subsequently married and has one child born after the commencement of this action. Plaintiff married the Rev. Dr. John Woodbridge in 1861. The testator resided at the village of Saratoga Springs, and at the time of his death plaintiff’s husband was a minister of the Presbyterian church at that place. An order of reference was granted, on the application of both parties, “ to hear the evidence on the accounting herein which may be produced by either party, and to report the same to this court with his findings and opinion thereon.” The referee reported findings of fact together with his opinion thereon, recommending the dismissal of the complaint. On a motion to confirm the report the court- made findings of fact and conclusions of law. Both the referee and court found that defendant, after letters testamentary were issued to him, made and filed a full and complete inventory of the estate with the surrogate, and then allowed plaintiff’s husband to retain the securities and manage the estate, und,er her sanction by oral authority, until June 28, 1872, during which time plaintiff received from defendant her income for one year and all the debts and specific legacies were paid. On the last-named date a formal power of attorney under seal was executed by defendant to plaintiff’s husband, constituting the latter the true and lawful agent and attorney of the former as executor and trustee to take possession of all the trust property and to use, manage and control the same, to collect all moneys due, to settle and adjust claims, and to do and perform all things necessary in that regard as fully ■ as defendant might or could do if personally present, and giving unto plaintiff’s husband full power of substitution and revocation, and ratifying and confirming all that he might lawfully do or cause to be done, and reciting that such power of attorney was given and executed with the sanction, ratification and approval of plaintiff, and that her husband was to be deemed her agent and attorney in al'1 matters and things done and to be done and performed thereunder, and reference was therein made to plaintiff’s Written sanction and authority to that effect thereunder written. Following the power of attorney was a writing executed under the hand and seal of plaintiff in the presence of a witness, reciting that she ratified and approved the appointment of her husband made by said power of ■ attorney, and that he was also to be deemed her agent and attorney in all matters and things done and to be done' and performed thereunder. Down to that time defendant had deposited all trust funds: to his account as trustee in a local bank) and on that day such account was closed and the. balance to his credit as such trustee was deposited to the individual credit of plaintiff, and thereafter the account was kept in her name until December 19,1814, from which time down to the appointment of plaintiff as trustee the account, was kept in the name of her husband. The referee and court also found that from the time of the execution of said power of attorney the business of the estate was conducted by plaintiff’s husband, under- and pursuant to said authority with her knowledge and approval, Until the 12th day of September, 1889, on which day plaintiff and her two children, then of age, executed and delivered to defendant a release under seal, signed in the presence of a subscribing witness who proved its execution, as follows: “Whereas — In and by the. last will and testament of Doct. Samuel Freeman, deceased, admitted to probate in Saratoga county, IST. Y., Augustus Bockes was. named as executor and trustee, and letters testamentary issued to him thereon.
    “And whereas-—-The Rev. John Woodbridge, son-in-law of said deceased, took the agency of the estate of said deceased, under said executor and trustee, and has had the entire conduct and management thereof, both real and personal, hy and with the consent and approval of the undersigned, which conduct, management, consent and approval is hereby in all respects ratified and confirmed by us and each of us respectively; said Bockes having never taken, or in fact received anything whatever from or belonging to said estate, or from its said conduct and management.
    “ And whereas — said Bockes has made disposition by formal transfer pursuant to, and in accordance with our, and each of our, request and direction, with all which, we the undersigned, declare ourselves satisfied and hereby ratify and confirm the same in all respects.
    “How, therefore — In consideration of the premises, and for value received, we and each of us, hereby release, acquit and discharge said Boches from any and all claim, demand and liability by reason of said executorship and trusteeship, growing or hereafter to grow, arise or to be made upon or against him, because of the same, or of the issuing to him of said letters testamentary, or of his formal or other acceptance of the same; and do hereby covenant and agree to save him harmless and indemnified from and against any and all claim, demand and liability aforesaid, of every name, nature and description whatsoever, by whomsoever made or asserted.”
    Concurrently with the execution of this release, defendant as trustee and plaintiff individually joined in the execution of a deed conveying all the real estate included in the trust or acquired with trust funds to plaintiff’s said children, who subsequently, and on May 16, 1890, conveyed the same to plaintiff individually, and defendant as such trustee assigned to plaintiff individually several long term leases and a large amount of bank stock, the only personal property requiring a formal assignment. Plaintiff subsequently surrendered this stock to the bank and obtained a new certificate in her name individually therefor. The court and referee, also found that this release and said power of attorney were executed voluntarily and freely with full knowledge of all the facts and without fraud, actual or constructive, or misrepresentation on the part of the defendant; that plaintiff, or her husband as her agent and attorney, had had possession and control of the personal property of the estate virtually since testator’s death, and actually since the execution of said power of attorney; that defendant had satisfactorily shown that, at the time of the trial, there was no portion of the estate, real or personal, in his hands or in the hands of plaintiff’s husband, but that the whole thereof now remaining was in the hands of plaintiff; that defendant has not at any tiine taken, accepted or retained to his own use any property, funds or money belonging to the estate; that since said 12th day of September, 1889, plaintiff has managed the trust estate exclusively and defendant has taken no part therein; that all of the papers relating to the trust have been in the hands of plaintiff or her husband since 1872, and in her possession exclusively since her appointment as trustee; that defendant has accounted for the property of said estate as well as the nature of the case will admit; that plaintiff is now vested with the title to all property and effects of said estate and has possession and control thereof; that in 1872 plaintiff’s husband; with her knowledge, acquiescence and approval, used $50,000 of the trust funds in the purchase, of a tract of twenty:six acres of land within the corporation limits of Hew ■Brunswick, H. J., as a family residence, and that plaintiff and her husband and children, and his children by a former marriage, have ever since and until within the last three years resided upon said premises, living in extravagant style and in excess of the income from said trust property, and that in this manner plaintiff has largely overdrawn her annuity of $3,500 per annum, and there is nothing due or owing from defendant or from the trust estate to her on account thereof; that the title to said Hew Brunswick property was originally taken in the name of plaintiff and her husband as joint tenants, but her husband subsequently deeded his interest therein to her and the legal title is now in her name, and she, with part of her family, still resides on said premises; that if there has been any waste or misappropriation of the trust funds it has been caused, permitted and sanctioned by plaintiff in her- own use and enjoyment thereof; that if any deficit exists in the funds of said estate the same has. been caused and brought about by plaintiff or by and through her acquiescence, approval and participation, and is principally represented by said indebtedness of $50,000 and interest thereon, owing by her to the estate for the trust funds used in the Hew Brunswick purchase; that if plaintiff would account and pay over to the estate the funds which she has appropriated or participated in appropriating to her own use, and her indebtedness to said estate on account of said Hew Brunswick purchase, this would fully meet and answer any and all alleged deficit or devastavit charged or claimed to exist herein. By a will executed Hovember 20, 1871, she gave to her husband her separate estate and the income for his life of that part of the trust estate which she was authorized to bequeath and devise, and on the 18th day of -Hovernber, 1872, by a codicil, she provided for payment of the indebtedness of herself and husband to the estate, on account of the Hew Jersey purchase, out of the principal of said part of the trust property, and for the payment of his indebtedness thereto for moneys, funds or property received as agent of the trustee or otherwise, out. of the income of said part of the trust property.
    It clearly appears that at least since 1872 defendant did not take any active part in the management of the estate, and that he merely signed such papers as were necessary to carry into effect the contracts made by the plaintiff’s husband. On the 9th day of June, 1894, plaintiff’s children and defendant joined in a petition to the Supreme Court showing that the latter had entered upon his duties as executor and trustee, and had so continued without having been removed or having resigned, and praying that his resignation be accepted, and plaintiff’s son and daughter therein prayed that their mother be designated as substituted trustee. The court made an order accepting the resignation and appointing plaintiff, without requiring her to give security. The order, which was drafted on the assumption that defendant had joined in the prayer for such appointment as well as for his resignation, directed defendant “ to transfer and deliver over the property in his hands belonging to said trust ” to plaintiff as his successor. These papers were prepared and the proceeding was conducted by plaintiff’s attorneys. The petition did not set forth that the management and'control of the property had been thus left to plaintiff’s husband, and the order is silent on the question as to whether an accounting was necessary or required. It is conceded that defendant never accounted as executor or trustee, and that his accounts as such were never judicially passed upon by either court. Plaintiff never made any demand on defendant for the payment of her annuity, and never complained of his turning over the management of the estate to her husband, or in any manner attempted to revoke the power of attornéy or repudiate the release or transfer of property to her until May 3, 1897, when, after having separated from her husband, she served a written demand for the delivery of the trust property to her and commenced this action a week later. It does not appear that plaintiff’s children have taken any steps to revoke or cancel the release executed by them, and they are not parties to this suit. In addition to the loss of income owing to the New Jersey purchase, the evidence indicates that by loans and investments made by plaintiff’s husband the estate has sustained a loss of a few thousand dollars, the exact amount not having been definitely shown or found. Defendant never saw or communicated personally with plaintiff, or had any' direct communication from her concerning the management of the estate, or any of the matters in controversy. It appears that all the documents executed by them or either of. them were presented by plaintiff’s husband. The plaintiff says that he told her that the power of attorney was a paper authorizing him to draw her income, and as to the will she says that she was seriously ill at the time of its execution, and her husband stated that he desired its execution as there might be some loss to the estate from investments, and he thought the defendant ought hot to be responsible. As to the other papers, plaintiff and her children testified that her husband on presenting them 'for execution said that they relatéd to the estate and that defendant wanted them executed, and that they, having implicit confidence in the husband and father, always signed without reading or knowing the' contents. While-admitting knowledge that plaintiff’s husband was managing the estate very largely, they testified that they supposed it was under the defendant’s advice as to all things and as his agent. Their testimony m this regard, while not expressly controverted by plaintiff’s husband or by any witness, is satisfactorily controverted by the documents themselves and the history of the manner in which the family lived. Some months prior to the commencement of this action plaintiff employed attorneys and executed a deed to defendant as trustee of all the trust realty held by her, but there was no satisfactory evidence of a tender of delivery of such deed to defendant, or of a transfer or tender of delivery of the personal property. The findings of fact by the court, so far as material, are amply sustained by the evidence.
    The Special Term decided (1) that plaintiff helds charged- with the trust all trust property and property purchased with trust funds; (2) that she must account for all funds taken by her authority or with her sanction and approval before she can maintain this action; (3) that the release was binding on plaintiff and her children, and is a bar to this action; (4.) that defendant held the life estate in trust, and his relation to plaintiff’s children and'testator’s next of kin is that of life tenant and remaindermen, not trustee and eestui que trust/ (5) that as plaintiff has received more than her income can possibly amount to and is indebted to the estate, she, representing herself, has no cause of action; (6) that as plaintiff is not trustee for "the remaindermen or charged with any active duty in their behalf ■and no cause of action in their favor could exist until her death, she ■could not, even if there had been no release, maintain the action for "their benefit, and for like reason she cannot maintain it for the contingent remaindermen, and (7) that the complaint should be dis^ missed upon the merits, with costs.
    One justice of the Appellate Division in the third department was disqualified, and the majority of the others being unable to concur in a decision, the appeal was transferred here.
    
      Appleton P. Palmer, for the appellant.
    
      John L. Henning, for the respondent.
    
      
      
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   Laughlin, J.:

The appointment of plaintiff as sole trustee was incompatible with her position as cestui gue trust. (Losey v. Stanley, 147 N. Y. 560, 568.) She was and is individually liable to the estate for funds and property had and received to her own use and probably for Unwarranted investments made by herself and her husband. (Earle v. Earle, 93 N. Y. 104; Perry v. Foster, 62 How. Pr. 228, 232 ; Booth v. Booth, 1 Beav. 125 ; Chillingworth v. Chambers, L. R. [1896], 1 Ch. Div. 685, 707.) It appears to us, therefore, that the sole beneficiary of the express trust should not have been made the trustee and given possession of the trust funds and property ; but she having been appointed on the application of the remaindermen and defendant, and he having been directed to deliver over to her the trust funds and property, he cannot question the validity of her appointment on this ground, nor may it be questioned collaterally. (First National Bank v. National Broadway Bank, 156 N. Y. 459, 472; People ex rel. Collins v. Donohue, 70 Hun, 317, 324; Mulry v. Mulry, 89 id. 531.)

It will be important to have in mind, in proceeding to a consideration of the many difficult points of law presented by this appeal, the exact interest of the several parties in this estate. The plaintiff has no legal estate. She is merely the cestui gue trust of her trustee and entitled to receive during life from the trustee semiannually the income,' rents and profits, not exceeding $3,500 per annum. (Stevens v. Melcher, 152 N. Y. 551, 567.) The trust estate is vested in the trustee, not absolutely, but for the purpose of the trust and with the remainder over to plaintiffs two children, whose vested future estate is subject to be divested by their death prior to that of their mother, in which, case it will go to their children,'if any, and otherwise to testator’s next of kin. (Matter of Brown, 154 N. Y. 313; Campbell v. Stokes, 142 id. 30.) The power to dispose of one-half of the trust property by will relates to the remainder only, and it does not vest a moiety in the cestui que trust or empower her to use or transfer any part of the corpus during life. The provisions of the Revised Statutes that where an absolute power of disposition, not accompanied by any trust, is given to the owner of a-particular estate for life or for years, such estate shall be changed into a fee, and that where a general and beneficial power to devise the inheritance shall be given to-a tenant for life or for years,, such tenant shall be deemed to possess an absolute power of disposition, do . not apply to a beneficiary of rents and profits who, by section 63 of title 2 of chapter 1 of part 2' of the Revised Statutes providing that no person beneficially interested in a trust for the receipt .of the. rents and profits of lands can" assign or in any manner dispose of such interest, but the rights and interest of every person for whose benefit a trust for the payment of a sum in gross is created are assignable ” is precluded from alienating his future income. (1 R. S. 730, 732, 733, pt. 2,. chap. 1, tit. 2, §§ 81, 84; Hume v. Randoll, 141 N. Y. 499, 505; Crook& v. County of Kings, 97 id. 435; Genet v. Hunt, 113 id. 169, 170; Cutting v. Cutting, 86 id. 522 ; Livingston v. Murray, 68 id. 491, 492.) It was the express duty of defendant to the beneficiary to-preserve the corpus of the estate , and by judicious investments thereof produce an income, if practicable, equal to her annuity and, although he was not -an express trustee for the remainder-men, the law implies a trust in their favor making it incumbent upon him to preserve the principal and surplus income, and account to them therefor at the expiration of the trush ' (Pom. Eq. Juris. [2d ed.] §§ 1065, 1066, 1067; Chapl. Express Trusts & Powers, §§ 237-246 ; Stevens v. Melcher, 152 N. Y. 551, 567 ; Cochrane v. Schell, 140 id. 516, 527;. Gilman v. Reddington, 24 id. 9; Sherman v. Parish, 53 id. 484, 493.) Here the trust is expressed in the will. The statute relating to the powers and duties of a' trustee of an express trust provides thatWhere the trust shall be expressed in the instrument creating the estate, every sale, conveyance or other .act of the trustees, in contravention of the trust, shall be absolutely void.” (1R. S. 730, pt. 2, chap. 1, tit. 2, art. 2, § 65.) As against this plaintiff individually and her children upon the facts stated the equities are all with defendant. While, although acting in entire good faith, he was guilty of a breach of trust in thus transferring the custody and management of the trust funds to plaintiff’s husband, it was intended for her benefit and that of her children, the presumptive remaindermen, whom she was bringing up, to afford a more full and complete enjoyment of the property by the family and to save the estate the annual expense of $500 for commissions to defendant. Presumably there would have been no breach of trust on the part of defendant had not plaintiff, as an inducement, expressly acquiesced in the power of attorney and constituted her husband her agent as well. It was doubtless known to all originally that the arrangement would not be binding on the remaindermen. The purpose of the codicil to plaintiff’s will was to . protect defendant against the claims of the remaindermen. The plaintiff, her husband and defendant all took chances in this regard. Undoubtedly believing, expecting and trusting that the remainder-men — the children who would naturally participate in the benefits of the breach of trust by enjoying greater home comforts, better social advantages and a more liberal education — upon coming of age would ratify their acts as has been done by the release executed to defendant. The principal breaches of the trust occurred, and a cause of action in favor of plaintiff individually, if she had one, actually accrued twenty-five years before the commencement of this action. (Miller v. Parkhurst, 9 N. Y. St. Repr. 759, 764, 765.) The plaintiff at least has been fully aware during this w-hole period of all the material facts. She not only originally induced defendant’s parting with that part of the trust property concerning which a devastavit is alleged, but seventeen years later she formally released him from all liability in consequence of such breach of trust, and for' eight years thereafter she had the exclusive possession of all the remaining trust funds and the title thereto and to the real property as well, and she consented to his resigning without accounting. It was not until after she had been trustee for three years, and until 'more than twenty-five years had elapsed since the substantial breach of the trust took place with her consent, and until defendant was manifestly unable to intelligently account, having turned the papers and vouchers, part of which have been lost, over to her husband, who in turn delivered them to her, and until defendant had lost all remedies against her husband and his transferees for redress in a restoration of the property, that she first complained to defendant and now asks a court of equity to require defendant, under pain of punishment for contempt, to account to her for the property, which he, while keeping it safely a quarter of a century ago, was induced by her to deliver to her husband, and of which she and her husband and family have had the exclusive use and enjoyment since. The rule holding trustees to a strict accountability for the due and full execution of their trusts must not be relaxed. But if plaintiff were awarded the relief prayed for that would be permitting her to perpetrate a fraud on defendant, to take advantage of her own wrong, and a violation of the maxim volenti non fit mj'wria. It .must be borne in mind that this is a suit in equity where the hard, harsh rules -of law are not rigidly enforced and the court need not make an unjust decree. (Bruen v. Hone, 2 Barb. 586, 587; Stevens v. Melcher, 152 N. Y. 551, 564, 574, 575, 582, 583.) It was competent for the presumptive remaindermen to release defendant, and while they are not parties to the suit and will not be bound by the decision, the release is presumptively binding upon them; (Matter of Brennan, 21 App. Div. 236, 240.) There is, therefore, no propriety in requiring defendant to restore the trust estate for them, because, for the purposes of this case, at least, it appears that they have released him.

The probabilities are that her children, the remaindermen who have released defendant, will survive plaintiff and be the only parties interested in the remainder. However, there being a possibility that their children or testator’s next of kin, the contingent remaindermen, - may take, thé question arises, should, under the extraordinary circumstances of this case, the court compel a restoration of the fund for that contingency ? Assuming, without deciding the question, that the trustee may maintain a suit for devastavit for the benefit of remaindermen, We think that as to these contingent remaindermen, in view of the great hardship and injustice that would result to defendant, and .considering also that plaintiff if not wholly liable is jointly liable with defendant to such remaindermen, it is proper for the court to withhold such relief and to leave it to such contingent remaindermen, should they ever take a vested interest, to redress the wrong for themselves. (Stevens v. Melcher, 53 Hun, 636; 6 N. Y. Supp. 811; Parks v. Parks, 9 Paige, 107, 123; Weard v. Cantwell, 36 Hun, 528; Ward v. Ward, 16 Abb. N. C. 253; Estate of Hamersley, 9 Civ. Proc. Rep. 293.)

This brings us to the final question whether the action may be maintained for the benefit of the cestui que trust. It would have been better practice if the action had been brought by the beneficiary individually as well as trustee, and if the remaindermen had been made parties. (Wood v. Brown, 34 N. Y. 337 ; Vetterlein v. Barnes, 124 U. S. 169; Sherman v. Parish, 53 N. Y. 483; Sears v. Hardy, 120 Mass. 524.) But the issues raised by the pleading litigated and decided involve her rights individually and the decision is binding upon her in each capacity. (Sanders v. Soutter, 126 N. Y. 193 ; Black Judgm. § 536.) It may be that the cestui que trust could not, in view of the statute quoted, release her future income; but there can be no doubt that the release is effectual to bar any right of action for accrued income. (Matter of Taggard, 41 N. Y. St. Repr. 796; affd., 138 N. Y. 610.) The public policy declared by the statute against allowing the beneficiary of rents and profits to anticipate the income is the same as that which makes assignments if the salaries of public officials, in advance of their becoming payable, void; but not so as to accrued salaries. (Sherman v. Parish, 53 N. Y. 483; Tolles v. Wood, 99 id. 616; Young v. Purdy, 4 Dem. 455; Estate of Valentine, 5 Misc. Rep. 479, 483; Matter of Worthington, 141 N. Y. 9; Bliss v. Lawrence, 58 id. 443, 448; Thurston v. Fairman, 9 Hun, 584.) The right of action for accrued income vests in the beneficiary alone and the trustee, therefore, cannot maintain an action for an accounting therefor. (People ex rel. Collins v. Donohue, 70 Hun, 317.) The question is thus narrowed to whether the accounting may be required for the sole purpose of requiring defendant to restore the trust fund and property in order that plaintiff may receive her semi-annual annuities in the future. It may be observed that it is difficult to see how defendant could be compelled to- make an accounting if he were otherwise liable, without the plaintiff first restoring to him or tendering restoration of the personal property that has come into her hands or herself accounting therefor, and delivering to him the papers and •vouchers belonging to the estate. (Davison v. Tams, 30 Misc. Rep. 159.)

We come now to the consideration of the application of the doctrine of estoppel and laches. '

In Walker v. Symonds (3 Swanst. 1, 64) the following principles of law previously laid down by Lord Eldon were quoted with approval, to wit: “It is established by all the cases, that if the cestui que trust joins with the trustees in that which is a breach - of trust, knowing the circumstances, such a cestui que trust can never complain of such a breach of trust. I go further, and agree that either concurrence in the act, or acquiescence without original con- ' currence, will release the trustees ; but that is only a general rule, and the court must inquire into the circumstances which induced concurrence or acquiescence; recollecting in the conduct of that inquiry, how important it is on the one hand, to secure the property of the cestwi que trust, and on the other, not to deter men from undertaking trusts, from the performance of. which they seldom obtain either satisfaction or gratitude.” (P. 64.)

• A case similar to the one at bar is that of Wail v. Punter (5- Sim. 555). Stock was settled on a wife for her separate use for life, with á power of appointment by will. The trustees, at the request of the husband and wife, sold out the stock, and paid the proceeds to her husband, who afterwards became bankrupt. The wife filed a bill to compel the trustees to replace the stock, and obtained a decree under which the trustees transferred part of the stock into court, and they were allowed time to transfer the remainder. Thé wife died, having - by her will appointed the stock to her husband and appointed him her executor. He filed a bill of revivor and supplement against the trustees and his assignees, claiming the stock under the appointment, and praying the same relief as his wife might have had. But the court dismissed the bill and sustained the defense that “ it would be contrary to plain justice, that he who has had the money once, should have it a second time.”

In Booth v. Booth (1 Beav. 125) the court said: “lam of opinion, on the authorities and on the established rules of the court to which it is not necessary to refer, that a trustee who stands by and sees a-breach of trust committed by his co-trustee, becomes responsible for that breach of trust. That the widow concurred seems to be quite clear; and any interest to which she may be entitled is the proper fund to resort to in the first instance. If she has obtained any benefit from the breach of trust, the trustee ought to be compensated in respect of it. I must, therefore, declare that the property ought to have been realized on the death of the testator; and that Batkin and Booth are liable for any loss which has occurred from not winding up the testator’s affairs at that time.”

In Brice v. Stokes (11 Ves. 319) it was held that “It is clear, upon settled eases, that if there are two trustees and a transaction takes place, in which the fund is taken out of the state, in which it ought to have remained, and is not placed in the state, in which it ought to be, but is kept in hands, that ought not to retain it, if any particular cestui que trust has acted in authorizing that as much as the trustee, who has not the. money in his hands, and continues to permit it to be so treated, in a question between that cestui que trust and that trustee, the latter cannot be called upon by the former.”

In White v. White (5 Ves. 554) the court said: “But if a trustee with the consent of the cestui que trust does an act for his benefit he is bound by it.”

In Griffith v. Porter (25 Beav. 241) the court said: “ It has been justly observed that the court Will not visit a trustee with the consequences of a breach of trust, committed with the sanction or by . the desire of the cestui que trust, or of one committed without the sanction or desire of the cestui que trust if, when it comes to his knowledge, he has acquiesced and obtained the benefit of it for a long period.”

In the late case of Chillingworth v. Chambers (L. R. [1896] 1 Ch. Div. 685, 707) the following principles applicable to cases of this character were announced: “ There appear to be three rules which have application to a case like the present, and may be shortly stated as follows : (1) That a cestui que trust cannot make a trustee liable for losses occasioned to him by a breach of trust which that cestui que trust has authorized and consented to ; (2) that in such a ■case a trustee is entitled to be recouped out of the interest of the cestui que trust in the trust funds any loss he may sustain by reason of his having to make good such breach of trust; and (3) that, as between two trustees who are in pari delicto, the one who has made-good a loss occasioned by a breach of trust for which the two are- ■ jointly and severally liable may obtain contribution to that loss-from the other.”

In Butterfield v. Cowing (112 N. Y. 486) the principle of these cases was declared, the court saying :' “ It is quite clear that no cespm que trust can allege that to be a breach of trust which has been done under his own sanction, whether by previous consent or subsequent ratification. The general rule is that either concurrence in the act, or acquiescence' without original concurrence, will release: the trustees.”

These rules and principles, stated quite as-broadly as declared by the English courts, are firmly established in our equity jurisprudence as shown by numerous decisions of the court of last resort. (Matter of Washbon, 38 N. Y. St. Repr. 619, 622; Sherman v. Parish, 53 N. Y. 483 ; Earle v. Earle, 93 id. 104; Matter of Niles,. 113 id; 547; Matter of Hall, 164 id. 196; Boerum v. Schenck, 41 id. 182; Second National Bank v. Burt, 93 id. 246; Lewin Trusts [2d Am. ed.], *773, *774.)

The application of these principles to the particular -facts of this--case is not, we think, in conflict with the authorities holding that-such á trust may not be abrogated .(Douglas v. Cruger, 80 N. Y. 15 Oviatt v. Hopkins, 20 App. Div. 168); that the beneficiary’s interest, is not assignable (Graff v. Bonnett, 31 N. Y. 12; Bull v. Odell, 19 App. Div. 605; Cochrane v. Schell, 140 N. Y. 516, 534), and that as against parties who are not. innocent purchasers, a beneficiary or trustee may disaffirm an act in contravention of the trust and recover the property. (Sherman v. Parish, 53 N. Y. 484; Wetmore v. Porter, 92 id. 76; First National Bank v. National Broadway Bank, 156 id. 459.)

The case of Matter of Brennam, (21 App. Div. 236) is distinguishable on the facts. The question was whether a purchaser at a judicial sale should be required to take title where a trustee of am express trust with the consent of the beneficiary of the rents and. profits conveyed the lands, without consideration, to the wife of the remainderman. This was in contravention of the trust and subject as to purchasers with knowledge of the fact to be rescinded by the trustee and beneficiary. .While such proceedings are irregular and not to be encouraged, yet in view of the laches, the court will not aid a cestui que trust, who has by her own solicitation received the benefit of the breach of trust, in perpetrating a fraud on a trustee by requiring him after such a great lapse of time to make an accounting and compelling him to restore the principal of the estate, the loss to which, if any, has occurred through her own mismanagement, or that of her husband, but will rather hold her estopped by the power of attorney and her conduct and bound by the, release. (Matter of Wagner, 119 N. Y. 28; Havilamd v. Willets, 141 id. 35; First National Bank v. National Broadway Bank, 156 id. 473 ; Moss v. Cohen, 158 id. 240; Griffith v. Porter, 25 Beav. 236, 241; Powell v. Murray, 2 Edw. Ch. 636; Boyer v. East, 161 N. Y. 580, 586 ; People ex rel. Steinson v. Board of Education, 158 id. 125; Stevens v. Melcher, 152 id. 551-553; Galway v. Metropolitan Elevated R. Co., 128 id. 132, 146; Calhoun v. Millard, 121 id. 69 S. C., sub. nom. Calhoun v. Delhi & Middletown R. Co., 8 L. R. A. 248, note; Matter of Neilley, 95 N. Y. 383; Kent v. Quicksilver Mining Co., 78 id. 159; Matter of Von Glahn, 53 App. Div. 164, 167; Johnstone v. O'Connor, 21 id. 77, 85; Mott v. New York Security & Trust Co., 29 Misc. Rep. 39 ; affd., 52 App. Div. 623; Bruen v. Hone, 2 Barb. 586; Lammer v. Stoddard, 103 N. Y. 672 ; Gilmore v. Ham,, 142 id. 1; Matter of Jones, 51 App. Div. 420; Perry Trusts, §§ 285, 850, 851, 869, 870; Wood Lim. [2d ed.] § 58.)

These views lead to the conclusion that the judgment should be affirmed.

The defendant, although he acted in good faith, is not free from fault. This estate should not be further depleted by the payment of the additional allowance of $2,000 as directed hy the Special Term. The order granting the extra allowance should be vacated, without costs, and the judgment modified accordingly, and as so modified affirmed, with costs.

All concurred.

Judgment modified by striking out the provision granting an extra allowance of costs and as thus modified affirmed, with costs of this appeal. Order granting extra allowance of costs reversed, without costs.  