I concur with Mr. Justice Rumset in the affirmance oí the judgment upon the appeal of the defendant Schermerhorn, but I cannot concur with him in the modification of the judgment suggested. By the conveyance of the property to Frost he became vested with the title to it under an agreement by which it was to be sold by *203him, and the proceeds distributed in accordance with that agreement. Under that agreement the defendant Chauvet was to receive a large sum of money, and it is quite clear that Frost’s interest in that property was for the benefit of those to whom, under the agreement, its proceeds were to be distributed. Under these circumstances, when Frost wrote to the company lfis assent to the payment of those entitled to the rents of this real estate under the will, it was a ratification of any payments which had been made by the trust company of the rents that they had collected to such persons, and an authority to make such payments to such persons in the future. If Frost had then taken the position that the income collected by the trust company was not to be paid to the beneficiaries under the will, the trust company would have been in a position to recover from them any payments which had, prior to that time, been paid ; but those persons to whom the payments had been made were the persons really entitled to the property in the event that the will was held to be void. They were also entitled to the proceeds of the property when sold under the agreement with Frost, and it seems to me that it is unjust now to charge the company with payments made by it out of the income to those who would have been entitled to the income in case the will was held to be .valid, when such payments were expressly ratified by Frost after the conveyance to him was made, and when the trust company acted under the authority contained in this letter. The fact that the letter would not be valid as an agreement because of a lg,ck of consideration, or was not sufficient to estop Frost from disputing the correctness of the payments which were made, would not prevent its acting as a ratification by Frost of the act of the company in distributing the rents or income of the trust estate received by it, and I think it was unjust to the company now to hold it liable for moneys which it paid to those entitled to the income of the trust property, which pay: ments were made with the express assent of Frost, and ratified by him.
I think that the judgment was right and should be affirmed.
Judgment modified as indicated in opinion of Rumsey, J., and as modified affirmed, without costs.