(dissenting.) I shall concede, for the purpose of this decision, the right of the plaintiff, by action, to compel the trustees to keep their covenants with him, in the deed of separation, containing the terms upon which he purchased his freedom from his wife, and the status or condition of quasi bachelorship.
The.trustees covenant with the plaintiff to perform all the trusts in the instrument of separation. As to $20,000 of the trust fund, the instrument specifies the manner in which it is to be invested, and kept invested; and the court can, at the instance of the plaintiff, compel the trus*77tees to keep it invested as specified in the instrument; and if the mortgages in which the defendants claim the $20,000 are invested are not such securities as the terms of the trust as to the $20,000 call for, the court can repudiate them, and compel the trustees to invest $20,000 as required by the terms of the trust. But as to $30,000, the residue of the trust fund, the instrument specifies that "it shall be invested in the joint names of the trustees, in such manner as Mrs. Cranston shall, from time to time, ly writing under her hand, direct or approve ; and the trustees are expressly authorized and empowered,. in their discretion, at any time, and from time to time, to pay over to Mrs. Cranston any part of the $50,000 (the trust fund) except the $20,000, for the investment of which particular directions had been given.
Now I cannot see how the order appealed from could be made, or how we can affirm the order, without unjustifiably interfering with, or taking away, this discretionary power of the trustees, given to them for the benefit of Mrs. Cranston, to pay her any part of the $30,000 at any time.
Even a court of equity cannot make a contract for parties, and certainly a court of equity will not undertake to alter or modify a deed of separation between husband and wife. I do not say that the court could properly have so far controlled the discretion of the trustees as to have ordered them, if the fund was in danger, to pay the $30,000, or to transfer the securities in which it was invested to Mrs. Cranston; but certainly such an order would have been more consistent with the terms of the trust as to the $30,000, and with the rights of Mrs. Cranston under the deed of separation, than the order which was made.
Moreover, I am not able to discover, from the papers, on what ground, or evidence, the court below determined that the $30,000, or so much thereof as had not been paid to Mrs. Cranston, was not invested according to the terms of the trust as to it, and ixs she had directed and approved; *78and if it was, I cannot see what right the plaintiff had to call upon the court to make any order or take any action as to the $30,000.
[New York General Term, January 4, 1869.I will add, that the order not only in effect, but in words, restrains the trustees from making any disposition of the trust fund, (except income,) though the plaintiff, by the trust instrument, expressly authorized them in their discretion to pay to Mrs. Cranston, at any time, any part of it, except $20,000 thereof. I do not see how the court could take away this discretionary power for the benefit of Mrs. Cranston, resting on the contract of the parties, which is assumed to be valid.
I think the order appealed from should be reversed, with costs. .
Order affirmed.
Clerke, Sutherland and Geo. G. Barnard, Justices.]