
    Walker J. Burns, Individually and as Administrator of the Estate of Mildred T. Burns, Deceased, Appellant, v. John G. Turnbull et al., Respondents, et al., Defendants.
   Action to cancel, set aside and declare void a trust agreement made by the decedent Mildred T. Burns.' On reargument (266 App. Div, 779), judgment dismissing the complaint reversed on the law and the facts, without costs, and judgment granted in favor of plaintiff canceling, setting aside and declaring illusory the trust agreement dated August 22, 1938, requiring respondents Turnbull and Hutchinson to account for all the property included in the alleged trust agreement or its proceeds, together with all rents, profits or income derived therefrom, and to deliver to the plaintiff, as administrator of the estate of Mildred T. Burns, the said principal, proceeds, rent, profits or income, excepting such amounts as were disbursed prior to December 1, 1941, in accordance with the provisions of the trust agreement. The order entered May 17, 1943, under the original decision of this court is resettled accordingly. This court’s decision has been correctly interpreted by Special Term as providing that there should be a complete accounting upon which the propriety of the respondents’ disbursements prior to December 1, 1941, the date the appellant demanded that the respondents turn over the property, was to be considered. Resettlement of our order is directed to eliminate any doubt as to this court’s intention. Upon reconsideration of the form of our order, findings of fact Nos. 17, 36, 37 and 38, conclusions of law Nos. 10, 11, 16 and 17, and the provision allowing costs against the respondents are eliminated. Finding of fact No. 27 and conclusions of law Nos. 7 and 12 are modified to set forth the date of the demand and to indicate that the plaintiff then became entitled to possession of the assets in the trustees’ hands. Conclusion of law No. 13 is modified by substituting the word “illusory” for the word “ void ”, It does not appear that the respondents acted in bad faith in entering upon and performing their supposed duties as trustees and in defending this action. In the exercise of discretion, therefore, costs should not have been awarded to the appellant. Close, P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.  