#### CORNELIUS DU BOIS, Jr., as Trustee, etc., Appellant, *v.*WILLIAM C. BARKER and others, Respondents.

*Trust estate*— *when vests in trustee*— *acts of te'ustee—when cestui que trust bound by.*

In 1851, W. 0. Barker and Beulah his wife conveyed certain real estate in Brooklyn to one Townsend, who, in 1859, reconveyed the same to the said Beulah. In 1861 Beulah died, leaving a will, by which she devised the property to the said W. 0. Barker in trust for her two children, authorizing him to sell and dispose of the same. The deed from Townsend to her was not recorded, nor was the will proved. In 1867 Barker erased from the deed the name of his wife, inserted that of Schwerin, his brother-in-law, and then recorded the deed as thus altered. Portions of the property were subsequently sold and mortgaged to various persons, the conveyances being executed by Schwerin, although Barker received and used all the money received therefor.

In 1873 the will was proved, and the plaintiff appointed trustee thereunder. In this action brought by him against the various purchasers and mortgagees to recover the property, *held*(1), that the estate vested in the trustee by force of the will without probate thereof; (3), that the acts of Barker in taking possession of, renting and improving the estate, constituted an acceptance of the trust; (3), that though his acts were irregular or even criminal, yet they were an execution of the power of sale contained in the will, and by virtue of them a good title vested in the purchasers and mortgagees.

Appeal from a judgment .in favor of the respondents, entered upon the trial of this action at Special Term.

*81The defendant William 0. Barker was appointed trustee under the provisions of a last will and testament left by his wife, which will contained among others the following provisions: “I give, devise and bequeath all my estate, both real and personal, whatsoever and wheresoever situate, of which I may be seized and possessed of at the time of my decease, unto my husband, the said William 0. Barker, his heirs, executors, administrators and assigns forever; in trust, nevertheless, to hold, sell, or invest the same as he, my said husband, may think proper, and apply the income thereof, and as much of the principal as may be necessary for the maintenance and education of my two children, Rebecca and Myra, until they shall respectively arrive at the age of twenty-one years, and when they shall respectively arrive at the age of twenty-one years, then to divide the same equally between them share and share alike.

“I name and appoint my said husband executor of this my last will and testament, and guardian of the persons and estates of my two children aforesaid, as well as trustee to support all the trusts herein created.

“ I also authorize and empower him to sell and dispose of my real estate, or any part of it, at such time as he may elect, by public or private sale, and by any deed or deeds of conveyance or assignment, to grant, convey and assign the same in fee simple, freed and discharged of and from all and every the trusts hereinbefore expressed, limited, and declared of and concerning the same, and without liability on the part of any purchaser or purchasers in respect to the application of the purchase-money and the proceeds of any such sale or sales, again to invest or apply the same in trust for the same uses and purposes, with the same powers, and subject to the same limitations as are hereinbefore expressed, limited, and set forth.”

The other facts in the case are stated in the opinion of the court.

*C. &*N. *D.*Lawton, for the appellant.

The title to said property being in Beulah T. Barker, at her death, she leaving minor children her heirs at law, such property could not be disposed of, incumbered, or in any wise or way affected; nor could any part thereof, except by an order of a court in a proceeding to which they *82were parties. (3 R. S. [5th ed.], part 3, chap. 1, art. 7; Tyler on Infancy and Coverture, 296; *Rogers*v. Dill, 6 Hill, 415; *Onderdonk,*v. *Mott,*34 Barb., 106 ; *Baker*v. Lorillard, 4 N. Y., 266 ; Perry on Trusts, 610.) Or by the official acts of a duly qualified trustee under her will, acting as such trustee. *(Fisher*v. *Hubbell,*65 Barb., 75, 90; *N. Y. Assn. v. Beekman,*21 id., 565.) On the death of Beulah T. Barker, leaving a will of her real estate, appointing trusts in regard to the same, the equitable title thereto vested in the *eestui que trust,*while the limited legal title, restricted to an extent which only admitted of the carrying out the purposes of the trust under such will, vested in the- trustee, dependent upon - the proof of the will and the acceptance of the trusteeship under it, and until both of which took place such trustee took no estate in such lands which could be assigned, conveyed or mortgaged, so as to pass any interest therein under a power of sale in such will. *(De Peyster*v. *Glendinning,*8 Paige, 310 ; *King*v. *Donnelly,*5 id., 46; *Trask*v. *Donohue,*1 Aiken [Vt.], 370; *Roseboom*v. *Mosher,*2 Denio, 70, 69; Hill on Trustees [Am. ed., 1854], 239 [* paging]; *Sawyer’s Appeal,*16 N. H., 459 ; *Williams*v. *Cushing,*34 Me., 372.) Upon the death of Beulah T. Barker, William 0. Barker took possession of the estate as father and guardian in socage of the children, but this gave him no right or title to the property or power to deal with it by sale or incumbrance, but only to collect the rents and profits for the benefit of .such children; and the fact of such possession could in no manner draw after it or clothe him with any right as trustee, or give him any power to deal with the «property, except as above stated as guardian, and such possession gave no notice to the world of any further title or right to deal with such property. *(Sylvester*v. *Ralston,*31 Barb., 286; *Jackson*v. *De Walts,*7 Johns., 157; *Byrne*v. *Van Hoesen,*5 id., 66 ; *Genet*v. *Talmadge,*1 Johns. Ch., 561; *White*v. *Parker,*8 Barb., 48; *Torrey*v. *Black,*65 id., 414.) The non-production and the failure to apply for the probate of the will was a virtual refusal, on the part of William O. Barker, to act as trustee. *(In re Robinson,*37 N. Y., 261; *Roseboom*v. *Mosher,*2 Denio, 70; *Burritt*v. *Silliman,*13 N. Y., 96.) The mere taking possession of the property in question cannot create or fix upon him the presumption that he accepted the trust, for even *83„if he had immediately on the death of his wife executed a written renunciation of his office as trustee, he would, nevertheless, have been entitled to the possession of the property as guardian in socage of his children, until the court, upon whom the trust devolved by his non-acceptance, could appoint another trustee of the estate. *(Sylvester*v. *Ralston,*31 Barb., 286; *Jackson*v. *De Walts,*7 Johns., 157; *Byrne*v. *Van Hoesen,*5 id., 66.) Such acts in any event would be void as in contravention of the trust. (3 R. S. [5th ed.], chap. 1, part 2, title 2, § 84, p. 22; *Cruger*v. *Jones,*18 Barb., 467; *Lahens*v. *Dupasseur,*56 id., 266; *Powers*v. *Bergen,*6 N. Y., 360; *Briggs*v. *Davis,*20 id., 15; Perry on Trusts, 309.) The doctrine of estoppel cannot be invoked in this case against infants, the *cestuis gue trust,*although there were acts done by William C. Barker which would estop him individually in regard to the property in question. *(Brown*v. *McCune,*5 Sandf., 224; *Ackley*v. *Dygert,*33 Barb., 177, 193.)

*Sidney V. Lowell,*for the respondent Ramsey.

The will vested the legal title and estate in Barker, as trustee, he taking the same subject only to account for proceeds to the *cestuis gue trust.*(1 R. S., 729, §§ 55, 60; *King*v. *Donnelly,*5 Paige, 46 ; *Urch*v. *Walker,*3 M. *&*C., 710.) The facts show an indisputable practical acceptance of the title or trust by Barker. (Hill on Trustees [Wharton’s], vol. 1, p. 215, and cases cited; *Conyningham*v. *Con.,*1 Ves., *522; Montfort*v. *Cardagan,*17 id., 487; *James*v. *Frearson,*1 N. C. C., 375-377; *Re Uniatke,*1 Jones *&*La., 1; *Re Needham,*id., 32; Lewin on Trusts, 230-232; *Chaplin*v. *Givens,*1 Rice Eq., 132, 154; 2 Hill on Trustees, *214; Thompson*v. *Leech,*2 Ventr., 198; *Witt*v. *Franklin,*1 Bin., 502; *Eyrick*v. *Hetrick,*13 Penn., 494.) Barker’s title as trustee would vest directly upon testator’s death. (Williams on Executors, vol. 1, p. 255; Jarmin on Wills [Perkins], vol. 1, p. 219 and note.) He derived his estate through the will; the same was not deferred until probate or otherwise. (Williams on Executors, p. 256 ; Dayton on Surrogates, 253; Dwyer, p. 367 *a ; Rex*v. *Stone,*6 T. R., 298; *Fenton*v. *Clegg,*9 Ex., 680.) Plaintiff is estopped by proceedings of his predecessor. (Coke Litt., 352 *a; Erroy*v. *Nicholas,*2 Eq. Cases Abr., 488; *Zouch*v. *Abbot,*3 Burr., 1802; 3 Sug. *V.*& P. [10th ed.], 428 ; *Watts*v. *84*Cresswell,*9 Vin. Abr., 415; 1 R. S., 730, § *66; Heroy*v. *Kerr,*2 Abb. Ct. Ap. Dec., 359.)

*R. Ingraham, Geo. Ingraham*and *John H. Knaebel, for*the respondents Morton, Whitson and Valentine.

*Wm. S. Cogswell,*for the respondent Merrill.

*D. P. Barnard,*for other respondents.

Barnard, P. J.:

William 0. Barker, prior to the 7th March, 1857, was the owner of certain lots of land situate in Brooklyn, particularly described in the pleadings. On that day he, by a full covenant warranty deed, transferred the same to Samuel Townsend, of the city of Philadelphia. This Mr. .Townsend was the father of Barker’s then wife. She joined in the deed. The premises were subject to two mortgages, one of $1,200 and one of $4,000. The payment of these mortgages was assumed by Townsend in the deed. On the 18th January, 1859, Samuel Townsend conveyed the same premises to Beulah T. Barker (Barker’s wife), subject to a mortgage of $1,200. Barker had, between the date of the Townsend deed and the date of the 'deed by Townsend to Mrs. Barker, paid the $4,000 mortgage. The deed by Barker to Townsend was given immediately prior to the entry of a judgment of over $3,000, against Barker, in favor of a Mr. Wolson. On the 11th March, 1861, Beulah T. Barker made her will, by which she devised the property to William C. Barker, in trust for her two children. The will gave full dominion over the property, including power of sale, and providing that the purchase should be “ without liability with respect to the application of the purchase-money.”

On the 28th of March, 1861, she died. The deed to her from her father, and the will by her, went upon her death into the possession of her husband, and both were kept a profound secret' for many years — until the month of May, 1873. On the 9th January, 1867, William O. Barker put upon record the deed from Townsend to his (Barker’s) wife, having erased, about that time, the name of Beulah T. Barker, the grantee, and in its place inserted *85the name of Edward Schwerin, a person who had married his (Barker’s) sister. Barker noted at the end of the deed, and before the witnesses’ names, the fact that this erasure was made before the execution of the deed. Barker, a few days thereafter, agrees to sell two of the lots to Messrs. Harsey *&*Parkinson, and gives a deed therefor, executed by Schwerin on the 1st of April, 1867. On the 19th March, 1868, Schwerin conveys all the remaining property to Ellen Barker, the second wife of William C. Barker, and a sister of the plaintiff. William 0. Barker and Ellen, his wife, subsequently executed Various mortgages upon the property for the full face thereof, and conveyed two of the lots to Rachel W. Townsend, who was the wife of -the Samuel Townsend who gave the deed to his daughter Beulah, and the mother of William C. Barker.

On the 12th of May, 1873, Beulah T. Barker’s will was proven, and the plaintiff was appointed administrator with the will annexed by the surrogate of Kings county, and thereafter trustee, by this court, at Special Term.

The children of Beulah T. Barker are still minors. Schwerin received nothing for his conveyance. Barker received the consideration, as well from the direct sale by Schwerin as before the mortgages given by his wife upon the title she acquired from Schwerin. There is no evidence to warrant the finding that the deed given by Barker to Townsend was a mortgage. It was a plain case of a conveyance given to hinder, delay and defraud creditors. The title passed to Townsend as between the parties. By virtue of Townsend’s deed to his daughter, she died having the fee of the property; and by her will it passed to William C. Barker in trust for her two children. Thus far the case seems plain.

If the trustee had received his wife’s deed, and proven the will, and executed the trust openly under it, he would have done his duty; but this he failed to do. He suppressed the will and altered the deed, and recorded it as altered, so that the record was apparently right. He perfected titles in this way, and thus the question presented'arises, where the loss is to fall — upon the children, the *eestuis que*trust, or upon the innocent purchaser and mortgagees who have acted upon the appearances of title which William 0. Barker the trustee made. The trust created by the will was a *86valid express trust under our statute.* The trustee took the whole estate subject only to the execution of the trust, † The estate devolved, by force of the will, without probate.

The evidence warrants the finding that Barker accepted the trust and executed it for many years. He took possession of the deed and will; took possession of, and rented and improved the property, and applied proceeds to the support and maintenance of the infants. . Being the legal owner, and intending to make a good title, and for a good consideration, which he received, he may have proceeded irregularly, or éven criminally. He executed the power of. sale in the will. He made an apparently legal title, and received pay for it. I discover no evidence to warrant the finding that Edward Dubois was not a *bona fide*mortgagee, nor that Rachel W. Townsend was not a *bona fide*mortgagee and purchaser. They are proven to be related; Edward is a brother to Barker’s wife, and Rachel W. Townsend is Barker’s mother. This is not sufficient to destroy their claims without-other proof. The judgment should be modified so that all transfers and mortgages given under Schwerin deed should be declared legal, the title to property untransferred by deed by Barker’s first wife, be declared vested in plaintiff as trustee,' subject to mortgages thereon; Barker to account as trustee before--, referee, and be declared to pay any balance he may owe on such accounting.

Present — Barnard, P. J., and Tappen, J.

Judgment modified in accordance with opinion, and as modified affirmed, with costs.

*

Chap. 2, part 2, title 2, R. S., § 55, sub. 3.

†

 Sec. 60.