#### William Morris Deen and Maria Cozzens Deen, (by Thomas W. Pittman, guardian,) and Elizabeth Ward Deen, plaintiffs, *vs.*Abram M. Cozzens, defendant.

1. Where a fund or estate is given in trust for infants, with a valid limitation over upon the death of such infants, the court has no power to break in on the *carpus*of the gift, for the support, maintenance or advancement of the infants.

2. If, upon such a trust, the trustee has not only broken in upon but exhausted the *corpus*of the fund, such *corpus*will be regarded as still in existence, because no court has jurisdiction to authorize the breaking in on it, or right to ratify the act of the trustee in so doing.

3. A woman, in contemplation of marriage, placed certain securities and stocks in the hands of a trustee, upon trust to convert and invest them, and from the income pf the fund and the accumulations thereof, to pay to the creator of the trust such sums as she might deem necessary for her support during her life, and the support and education of her children, and at her decease * * * to continue the payment of the income, or so much of the income and principal as would be necessary for the support and education of the children of the marriage, until they should respectively arrive at the age of twenty-one years; and whenever either of them should reach that age, to pay to such child one equal share of the principal fund as it should then exist; but if any one of such children should die under twenty-one years of age, leaving issue, such issue to stand in the place and receive the income and share of such deceased child. And in case all the children of the marriage should die before attaining the age of twenty-one years, without leaving issue, then said fund to be paid to the right heirs of the creator of the trust, provided she was then also dead) bnt if fhe iyife should survive the children, then a competent income was to be paid to her during her life.

*Meld,*that the interest of the infants was contingent on their arriving at twenty-one years age. That such of them as should die before coming of *179age, leaving lawful issue, had. no right to the estate; for in that event, the estate was given to their issue, and not to them. And that it was impossible to say that either of the infants would ever be entitled to any part of the capital; for if they should both die under twenty-one years of age, leaving issue, the estate would go to their issue; and if both should so die, leaving no lawful issue, the estate would go the right heirs of the creator of the trust.

4. *Seld, also,*that the children being still living, and minors, the trustee must be considered as having in his possession the capital of the fund; and that the court had no authority to make any allowance, out of the capital of the fund, to such infant children, for their support and maintenance, there being no income which it could direct to be paid, the same having been already applied by the trustee according to the trust. The trustee was therefore directed to pay the principal of the trust fund into court, to abide the litigation, and subject to the further order of the court.

6. The trustee having neglected to keep the fund invested, as directed by the trust, and having mingled it with his own funds, and used it, and claimed to have appropriated the whole of it in a manner not authorized, although for the benefit of the *cestuis que trust; Seld*that although this was done by the trustee through a want, of proper understanding of his duty, and with a good intent and not through dishonesty or want of fidelity, yet that one who had so failed properly to understand his duties, and by reason of such failure had exposed the fund to the hazard of being lost by his insolvency; who had in fact allowed the *corpus*to be eaten' up, and kept the fund still exposed to hazard of loss by reason of business vicissitudes, and also exposed by entangling litigation in case.of his decease, should not be retained as trustee, Per Jones, J.

(Before Jones, J. at special term,

February —, 1867.)

This was an application by the plaintiffs (some of whom were Iminors) as *cestuis que trust,*to compel the defendants to apply a portion of the principal of the trust fund in his hands for their support.

The action was brought against the defendant as trustee of the plaintiffs, for an account of the profits of the trust fund, and for other purposes. A motion was made in it, to compel him to pay the trust fund into court, and for other relief, upon a petition of the plaintiffs. Such petition set forth that one of the petitioners, (Elizabeth W. Deen,) about the first of January, 1850, prior to and in contemplation of marriage with her deceased husband, *180(Wm. B. Deen,) placed in the hands of the defendant a certain sum ($14,821) to be held on certain trusts; that afterwards, in fulfillment of said marriage engagement, on the 24th day of January, 1850, she intermarried with said Wm. B. Been and afterwards bore him two children, the plaintiffs Wm. M. Been and Maria C. Been, who are still alive and are co-plaintiffs and co-petitioners with their mother. That on the 8th day of ¡November, 1854, the said defendant executed a declaration of trust whereby, after reciting the foregoing facts; that the trusts aforesaid had never been reduced to writing; and that Mrs. Been had required from him a declaration of the trusts upon which said funds were held by him, the said trusts were declared to be as follows: that said trust funds then, (to wit, on the 8th of ISTov. 1854,) consisting of sundry railroad bonds and stocks of the nominal value of $27,500, standing in the defendant’s name, were held by him upon trust to convert the said funds and invest them in securities in which they then were, or in other securities as the defendant might deem advisable and best, and from *the income of the fund and the accumulations thereof,,*whenever in his opinion the occasion should arise to require it, to pay to Mrs. Been such sums, semi-annually or oftener, as she might deem necessary for her support, during her life and the support and education of her said children, and at her decease or re-marriage, in case the said Wm. B. Been should die before her, to continue the payment of the income of said fund, or of so much of the income and principal as would be necessary for the support and education of the children of Mr. and Mrs. Been, until they should respectively arrive at 21 years of age, and the annual balances of said income over and above the sum that should be needed for the aforesaid purposes, to invest to the uses aforesaid; and whenever the said children should respectively arrive at the age of 21 years, to pay to each one so arriving at that *181age one equal share of said principal fund as it should then exist, according to the number of children that should then ■ be living, hut if any one of such children should before arriving at 21 years of age die, leaving issue, such issue to stand in the place and receive the income and share of such deceased child. And in case all the children of Mrs. Deen should die before attaining the age of 21 years, without leaving issue, then said fund to be paid to the right heirs of the said Mrs. Deen, provided the said Elizabeth were also dead; but if said Elizabeth should survive said children, then a competent income to be paid to her during her lifetime, in the discretion of said trustee or his successor.

The petition further alleged that Mr. Deen left no property or means of support for the petitioners, other than such trust fund; that the defendant has never accounted with the petitioners, and has neglected and refused to communicate to them any information in regard to such fund, its amount, its investment, or the trusts on which he held said fund; that the petitioners only obtained a copy of the declaration of trust by accident; that he artfully and persistently produced on the petitioners’ minds the impression that they were dependent on his charity for the means of support; that he allowed them money, not by regular installments, nor proportionably to their necessities, hut according to his pleasure and caprice, and by reason of such irregular and insufficient supply of money they were frequently reduced to serious embarrassments and humiliating extremities; that the defendant frequently threatened to deny them any allowance whatever, and at times refused to furnish them funds, or to discharge their necessary indebtedness; and that being advised of the intention of the petitioners to take legal steps against him, he refused absolutely and definitively either to supply them money, or to defray the charges of their support. And *182that by means of such refusal, the petitioners are deprived of all sources of subsistence. That the defendant never gave any security for the performance of the trust; was largely engaged in speculations, and liable at any moment to a reverse of fortune; that he had not invested the fund-in real estate or government securities, and kept the trust fund separate and distinct from his own funds; but without the sanction of any order of court had mingled the same with his own money and hazarded it in enterprises for his own profit; that by reason of such misapplication the petitioners were in imminent peril of losing their only means of subsistence; that the defendant never procured an order of the court authorizing him *to*invade or expend the principle of the fund, and that on the third day of April, 1866, the defendant admitted he had abalance of the fund in his hands.

The petition then prayed that the defendant might be ordered to pay over the trust fund as the court might direct, and that in the meanwhile so much of said fund, and in such manner as the court might direct, should be appropriated to the necessary support of the petitioners.

The defendant, in opposition to this petition, produced his own affidavit, wherein he deposed that although the nominal value of the securities mentioned in the declaration of trust was $27,500, yet that the actual value thereof was far less; that prior to October, 1857, he had sold those securities, and realized from the sale only $13,463.73. That he had paid for the support and maintenance of the petitioners^ between the 8th of ¡November, 1854, and February 4th, 1867, various sums, amounting to $28,185.04. That he never withheld from the petitioners information in regard to the trust fund, its investment, or the terms and conditions of the trust, or endeavored to produce on them, or either of them, the impression that they were dependent on his charity for the means of support; but *183that on the contrary the amount of the trust fund, the circumstances under which he became possessed of it, and the trusts on which he held it, have .always been well known to the petitioner, Mrs. Deen, and there never was, on his part, the slightest attempt at concealment. That he never improperly withheld from the petitioners any payments which ought properly to have been made, or ever threatened so to do; nor did he by reason of notice of an intention on the part of the petitioners to institute legal proceedings, refuse to supply them any money or defray the charges of their support; hut that the whole of the trust fund having been exhausted in the support of the petitioners, he has refused and does refuse to accede to Mrs. Deen’s apparently limitless demands; that the last two payments he made her were: 1867, January 3. Cash, W. Hodges, hotel bill, $609.27 <£ “ “ Cash, bill of Perry house, . . 199.50 and during the year 1866, he paid her, in divers sums, the aggregate amount of $3702.90. That his payments were made in regular installments, but have been of irregular sums, for the reason that all his efforts to induce Mrs. Deen to confine her expenditures within the income of said trust fund, or to a regular allowance, have proved ineffectual. That he has never given any security because he never was requested to do so; that no specific investment of the trust fund was made, and that he kept the same himself, merely holding himself chargeable therefor, as a debtor, and allowing seven per cent interest; but that the irregular manner in which Mrs. Deen called for money, and her habit of encroaching upon the capital, rendered the maintenance of the fund in specific investments extremely inconvenient, if not impracticable. That he did not hazard the trust fund in speculations for his own profit, nor was it ever in peril of loss, for always while he has held it, his pecuniary responsibility for it has been without *184question. That he never largely engaged in speculations, go as to be liable at any moment to a reverse of fortune, but on the contrary thereof, his pecuniary condition, is not at all hazardous or questionable; and that whatever interest the petitioners have in the trust fund is not now in jeopardy; that in the administration of the trust and his efforts to induce Mrs. Deen to restrain her expenditures within some reasonable bounds, he has been subjected to great annoyance; and that he has no desire to continue to be trustee of said fund, if any there be, but is "willing to tender his resignation, in the Supreme Court.

Jones, J.

The allegations contained in the petition of the plaintiffs naturally lead the mind to the conclusion that the defendant held a large trust fund, but obstinately and without cause refused to apply the income accrued from the fund to the legitimate purpose of the trust, so that the beneficaries of the trust were by reason of such obstinate and unlawful refusal now starving and homeless, and so obliged to come into court to compel the trustee to perform the duties imposed on him by the trust.

The affidavit of the defendant dispelled this idea, and showed that instead of having harshly and unfeelingly refused, without cause, to apply according to the provisions of his trust the income of the trust fund to the support of the beneficiaries, he has under the pressure of importunities by one of the petitioners, advanced for the support of the petitioners almost not only the whole amount of the accrued income, but also the whole amount of the principal of the fund, and at least an additional sum of $4000 of his own money. The facts in the case show that the defendant’s conduct, instead of being such as should subject him to the strictures insinuated in the petition, was that of a generous nature, operated on by the importunities of a woman. His conduct was not strictly legal, but it was *185consistent with very natural and honorable feelings, and not actuated by motives of dishonesty. It may be urged that he should have continued to act generously, and make advances; but there is a limit even to generosity, and I think that limit had been reached. The defendant, after having exhausted the trust fund, and advanced at least $4000 out of his own pocket, was constantly called upon to make more advances; but when the persons to whom he had made the advances, sought to make him liable over again by reason of his dereliction from the strict line of legal duty and re-apply to their future use that trust fund of $13,403.93, which he had already applied to their use, I cannot consider him as morally much to blame for refusing to make further advances which the petitioners would not have allowed him, on account of this sum which they sought to hold him liable to pay over again.

It may be suggested that the defendant, in making these liberal advances, was morally culpable, because in doing so he induced, in the minds of the petitioners, the belief that they were entitled to a larger property than they really owned, and thus led them to live in a way, and make expenditures commensurate with such belief. The petitioners could hardly make such a suggestion, in face of their allegation in the petition that he strove to make them believe that they had no property, but were objects of his bounty. There is, however, a further answer to the suggestion. It can hardly be supposed that a wife would not be aware of the ante-nuptial settlement made for her benefit, and the amount of it; and the proof in this case shows, to my mind, that Mrs. Been had such knowledge. Although women are not generally credited with the possession of much financial ability, yet any woman of ordinary intelligence must surely know that the interest of $15,000 will not justify a yearly expenditure of $5000 or $3000, or $2000, or even $1200; and that when she makes *186such expenditures she is impairing the capital. I conclude, therefore, that in this case Mrs. Been knew she was exhausting the capital, and was not led to the belief that she and her children were entitled to any larger property than the fund which she knew to have been settled on her and them.

It does not appear to what purposes the money was applied by Mrs. Been. We must, therefore, be content to assume that it was mostly applied, as was natural, to give her children that health and education which would fit them to become useful members of society, and earn by means thereof, not only a livelihood, but a competency. This undoubtedly was a paramount object; and the application of the principal of a trust fund to such purpose, (when there are no remainders over,) has been sanctioned by the court of chancery, as eminently proper.

I have deemed it necessary to make these observations upon the facts as presented by the petition, and the defendant’s affidavit, before passing to the legal points.

The petitioners’ counsel, on the argument, abandoned the theory of the petition, and founded his argument upon the facts admitted by the defendant’s affidavit; to wit, the declaration of trust, its provisions, and the facts that the capital of the fund had been broken in on and exhausted for the support and maintenance of the petitioners without an order of court, authorizing it; that the trust fund had never been kept separate from the defendant’s own funds, and had never been kept invested ; that the defendant had ceased making payments to the petitioners; and that the petitioners were without the present means of subsistence.

The motion made in behalf of the petitioners may be divided into two branches :

1. To have the corpus of the fund paid into court.

2. To have an allowance made by the court out of the corpus, for the support and maintainance of the petitioners.

*187It will be more convenient to consider the second branch first.

In the argument of this branch, the petitioners’ counsel claimed that as the defendant had, without the consent of a court of competent jurisdiction, broken in upon and exhausted the *corpus*of the fund, the court must regard him as still holding the fund, and the fund being in existence has power to break in on it for the maintenance and support of the petitioners. The defendant’s counsel claimed that if the corpus was broken in upon, for purposes to which the court would have lent its sanction, it will now ratify the voluntary act of the defendant, and that consequently, before it can be known how much of the corpus still remains, it is necessary there should be an accounting to ascertain to what extent the court would have authorized the breaking in on it.

In the view which I have taken of the case, the whole *corpus*must be regarded as still in existence, for the reason that no court has jurisdiction to authorize the breaking in on it. This view disposes of the claim of the defendant for an accounting.. For if the court has not authority to authorize such breaking in, it has no right to ratify the act of the trustee-in so doing. It likewise disposes of the claim of the petitioners to have the court make an allowance out of the corpus.

I have come to this view upon the authority of two cases decided by Chancellor Walworth, in the late court of' chancery. *(Matter of Davison,*6 *Paige,*136.) In *the matter of Ryder,*(11 *id.*185,) cited with approbation in *The matter of Turner,*(10 *Barb.*552, 557.) These cases hold that where a fund or estate is given to an infant, with a valid limitation over upon the death of such infant, the court has no power to break in on the corpus of the gift for the support, maintenance or advancement of the infant.

In the *matter of Ryder, an infant,*(supra,) the grand*188mother of the petitioner, by her will, gave to the mother of the petitioner the rents and profits and income of her real and personal estate, with remainder to her surviving children and to the issue of such as should have died, leaving issue at her death. The court held that even with the consent of the mother they could not appropriate any part of the capital of the fund to the support and maintenance of her children; saying, among other things, “the children have only a contingent interest, and such of the children as may happen to die in the lifetime of their mother will have no right to the estate, even if they should leave issue; for the estate in that event is given to their issue, and not to them. It is impossible to say that either of the children now in existence will ever be entitled to any part of the capital.”

These remarks apply with great pertinency to the case at bar. Here, the interest of the infants is contingent on their arriving at twenty-one years of age. Such of them as die before coming of age, leaving lawful issue, have no right to the estate; for, in that event, the estate is given to their issue, and not to them. It is impossible to say that either of the infants will ever be entitled to any part of the capital; for if they should both die under twenty-one years of age, leaving issue, the estate would go to their issue; if both should so die, leaving no lawful issue, the estate goes to the right heirs of the creator of the trust.

Even if I had doubts of the soundness of these decisions, (which I'have not,) still, at special term, I would be bound to follow them, until they are reversed either by the Court of Appeals or by a general term of this court, or of the Supreme Court.

Upon the first branch of the motion, the trustee, therefore, must be declared to have in his possession the capital of the fund, amounting to $13,403.93. And it must also *189be declared that the court has no authority to make any allowance out of the capital of the fund, to the petitioners, for their support and maintenance.

There is no proof now before me to charge the trustee with the difference between $14,821.85 and $13,403.93.

There is no income which the court can direct to be paid; for all the income which has, or by possibility could have accrued, up to this time, has been applied by the trustee according to the trust.

"With reference to the second branch of the motion, that must depend upon whether there is sufficient cause for the removal of the trustee. This is among the issues of fact to be tried, and I do not propose to outstrip the trial; but it seems to me that under the circumstances there is sufficient cause to induce the court to take charge of the fund during litigation.

The defendant has neglected to keep the fund invested, as directed by the trust, mingled it with his own funds, and used it, and claims to have appropriated the whole of it in a manner not authorized, although for the benefit of the *cestuis que trust,*blow, although this was done by the defendant through a want of a proper understanding of his duty, and with a good intent, and not through dishonesty or want of fidelity, yet one who has so failed properly to understand his duties, and by reason of such failure has exposed the fund to the hazard of being lost by his insolvency, has in fact allowed the *corpus*to be eaten up, and keeps the fund still exposed to hazard of loss by reason of business vicissitudes, and also exposed to entangling litigation in case of his decease, should not be retained as trustee.

I am aware that *Hill,*in his work on *Trustees,*page 202, (192,) says : “ A failure by a trustee in discharging the duties of his office from mistaking, or misunderstanding his duty, will not *of itself*be a sufficient ground for remov*190ing him.” In support of this he cites *Attorney General*v. *Coopers’ Comp.*(19 *Vesey,*192.) But Judge *Story,*in his work on *Equity Jurisprudence, (vol. 2,*§ 1289,) gives a somewhat different exposition to the case in *Vesey.*In his view of that case all that it. decides is that “It is not *every*mistake or neglect of duty, or inaccuracy of conduct of trustees which will induce courts of equity to remove them.” But, in the language of Judge Story, “such acts or omissions must be such as to endanger the trust property or to show * * * a want of proper capacity to execute the duties, or * ,*

On this branch of the motion, I think the defendant must pay the principal of the trust fund to the extent of $13,403.93 into court to abide this litigation, and subject to the further order of the court.

I regret to be obliged to come to this conclusion. It operates harshly on the defendant, and the petitioners’ counsel will probably claim that it operates harshly on them. But the law is clear, and it is better for the courts to administer the law as settled than to endeavor to subvert it to meet sporadic cases of hardship arising out of violations of it.

Let an order be settled conformably to this opinion, on two days’ notice.