(dissenting, in part):
This action relates to the personal property of which William Z. King died possessed. By his will his widow, Mary E. King, was given the use of the said personalty during her life. If this had been the only provision of said will relating to her, the determination of this case would be easy, for she would hold the property in trust for those who might be entitled to the same after her death. The corpus of that trust wq,uld be the entire fund which she received. (Hitchcock v. Peaslee, 145 N. Y. 547; Matter of McDougall, 141 id: 21.) But Mrs. King was entitled not only to use the income of the personalty during her life, but also so much of the principal as was beneficial to her. Her power of disposition was not absolute so as to make her the complete'owner of the property, but such power of disposition was limited to that which was necessary for her own benefit. (Tuthill v. Davis, 121 App. Div. 290.) Does this fact alter the corpus of the estate as to which she stood in a trust relation ? In other words, did she take the entire personal .estate of William Z. King, charged with a trust duty, which was. to. preserve it for the remaindermen except in so far as she terminated the trust by using all or a portion of it during her life, or did she take such property, to quote from the opinion of Mr. Justice Jenks, “as a trustee or quasi trustee” only “as to any remainder which she had not used, consumed or disposed of during her life.” If we adopt the latter construction we have the strange anomaly of a person becoming trustee or for the first time occupying a trust relation to a fund at the moment of death, when it was impossible to discharge *196the duties of such trust relation. It seems to me clear that the trust arose in her lifetime, and in every one of the cases cited or which I have been able to find, such language has been employed in respect to the time when the 'trust arose. In Chaplin on Express Trusts’ and Powers (p. 110) the writer says: “ He [testator] may confide the custody of the corpus to the legatee for life, with right to use the same, with remainder over; such provisions are not inconsistent;. * * * tiie legatee is then, during life, a trustee of the corpus, for the remainderman. * * * And this is still so though the life tenant is given conditional power of consuming the principal, e. g., so far as necessary for his support. He is still trustee of the property for the remainderman, in so far as not thus needed.’,’ In Flanagan v. Flanagan (8 Abb. N. C. 413) the gift of testator was to his wife of “ the use of all the remainder during her life, and the portion left of such remainder to be distributed to the poor of St. Peter’s Church.” Although the remainder to the poor of the church was held void for indefiniteness, the court held that the relation of the widow to the fund was that of trustee for those ultimately entitled to the remainder. The court say: “The effect of the bequest, in this case, confides the fujid to the legatee for life, .to the end that she may exercise her power of disposition over it. She will be deemed to hold, as- trustee, for the poor of St. Peter’s Church or the heir at law, whatever shall remain or continue undisposed of in her hands. * * * But the trust may, perhaps, be a barren one ultimately as regards the cestui gue trust, inasmuch as the plaintiff has it in her power at any time to foreclose all claim of such party by a consummated effectual disposition of the entire fund. Still, she will remain as trustee of the fund so long as it shall continue in her hands undisposed of” In Matter of Cornell (170 N. Y. 423) the court said : “ Though possession of the ’ securities was given to the donee, this did not make him their absolute owner.” In Smith v. Van Ostrand (64 N. Y. 278), where a life interest and remainder were created in a fund and the testator directed the fund to be turned over to the life tenant, it was held that this did not make the gift to the life tenant absolute, but that she held thefxmd as trustee for the remainderman. From all these cases it seems quite clear that the trust relation arose in the lifetime of Mrs.' King and that she was the person who was *197•charged with the performance of the trust duties. If the trust arose in her lifetime, the subject of the trust could not be what she left unconsumed or undisposed of at her death. It is impossible to conceive of a trust relation without both a trustee who owed certain trust duties, and property which is the subject-matter of the trust. But what was left Unconsumed and undisposed of at the time of Mrs. King’s death could not be the only subject-matter of the trust, for then the. trust could not "begin in her lifetime, since up to her death there was no defined subject-matter of the trust. If it did begin in her lifetime, then, in the first ^instance, the trust duty must have related to what she received from her husband’s estate. That trust, was only completely discharged when she either preserved the principal for the remainderman, or consumed and made use of a portion of suchprincipalfor her own benefit during her life. When the trust relation exists the burden of accounting rests upon the party occupying such relation. (Marvin v. Brooks, 94 N. Y. 71.) In this case that burden is met by showing either that the entire fund has been preserved for the remaindermen, or that a portion of the fund has been used in accordance with the provisions of the will for her own benefit. This seems to me to furnish the only consistent, logical and workable rule. The person who occupied a trust relation to the entire fund which was received from her husband’s estate when it came into her possession, better than any one else in the world, is in a position to know and to keep account of what disposition she made of it. The law requires her to . keep such account, so that after her death her personal representative may be in a position to render such account and turn over the fund which she received, or to show that as to the whole or a portion of such fund the trust has been terminated, because she made use of such fund for her own benefit: It was, therefore, entirely proper to charge the. defendant in this action with the property, received from William Z. King’s estate. Whether this was done in the interlocutory judgment or in the final judgment is immaterial. Upon the accounting, which concededly the court was justified in requiring the defendant to make, any sums which were properly expended out of the principal received, either for purposes óf administration of William Z. King’s estate or by the life tenant for her own use, could be credited to her. The defendant here has *198shown a lack of candor and fairness in the entire proceeding, and has apparently sought to obscure rather than to make clear the' real situation. If, as the result of this, he has been held accountable for a larger sum than was justified by the real facts, he has only himself to blame.
I vote to affirm both the interlocutory and the final judgment, ■ with' costs.
Interlocutory judgment modified in accordance with the opinion of Jenks, J., and as modified -affirmed, without costs. Final judgment reversed, without costs.