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 *514annum. (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 *515duties 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 *516'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 plain*517tiff 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 resto*518ration 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-*519breach 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 *520between 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 *521not 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.