(dissenting). Without repeating relevant facts which have been fairly and accurately set forth by Judge Van Voobhis, writing for a majority of the court, the basis of our dissent from the majority view can be briefly stated.
During the forty years of his life tenancy, Samuel J. Beck-ford kept no permanent records of his dealings with property of which his wife, by her will, gave him only the life use. Instead, his executor has discovered that he ‘ ‘ followed the consistent practice of destroying records as they became more than six months old.” It does not appear of record that during that forty-year term the life tenant accounted in any manner for the disposition made by him of personalty — of value in excess of $100,000 — which was delivered to him by representatives of his wife’s estate and for which he gave his receipt. Although there was no provision in his wife’s will which permitted him as legal life tenant to invade the principal of the fund created for his use, the executor of his estate, after careful search, has been unable to locate any part of the personalty comprised within that fund. Indeed, the petition in the present proceeding, verified by Janet S. Beckford, J. F. Fitzgerald, Edith F. Limburg and Marion T. Mack states that “ No account of proceedings was ever filed by said Samuel J. Beckford during his lifetime * # That verified statement of fact stands in the record uncontroverted. Furthermore, of the personalty coneededly delivered to the life tenant by representatives of his wife’s estate there is principal unaccounted for in the amount of $129,799.11; and no excuse whatever is offered for the failure of the life tenant to account to remaindermen for property to which they are legally entitled.
It is settled law that where, as here, a will has created a life estate with remainder over to named persons, and property is delivered to the life tenant in accord with testamentary provisions, the property thus delivered is impressed with a trust for the benefit of remaindermen. That rule was stated by Chief *179Judge Cullen writing for this court in Seaward v. Davis (198 N. Y. 415, 420) — “ It is doubtless true that ordinarily a life tenant in possession of personal property is a trustee to preserve the principal for the remaindermen to whom it may pass on Ms death ” (see, also, Peck v. Smith, 227 N. Y. 228, 232; Matter of von Kleist, 265 N. Y. 422, 427-428).
As if to reinforce the rule mentioned above — which requires of a life tenant strict accountability in favor of remainder-men— the Legislature placed enforcement of a life tenant’s fiduciary obligation in the domain of public policy when (by L. 1940, ch. 829) it enacted section 261-a of the Surrogate’s Court Act. That statute, bearing the caption “ Accountability of legal life tenant or of the executor or administrator of a deceased legal life tenant or of the committee of an incompetent legal life tenant”, provides in part: “Every right granted by this article to or against a testamentary trustee and the legal representatives of a deceased testamentary trustee * * * shall apply to a similar proceeding by or against a legal life tenant and by or against the legal representatives of a deceased legal life tenant * * (Italics added.)
Where, as here, a life tenant — impressed with fiduciary obligations to remaindermen — fails to account for Ms dissipation of a fund as to wMch he has only a life use, doubts, if any, as to his use of the fund may be resolved against him. “ He is bound to keep clear and accurate accounts, and if he does not the presumptions are all against him, obscurities and doubts being resolved adversely to him. (2 Perry on Trusts, § 821.) * * *•” (White v. Rankin, 18 App. Div. 293, 294-295, affd. 162 N. Y. 622; and see 2 Scott on Trusts, § 172; 4 Bogert on Trusts and Trustees, Vol. 4, pt. 2, § 962, and Restatement, Trusts, § 172.)
In the record at hand “ obscurities ” abound. Indeed, the Surrogate’s opinion, in the course of comment upon the lack of proof as to what disposition the life tenant had made of the fund — states: “ But what has become of the personal property consisting of securities then. valued at approximately $102,000? No one knows * * V’ (Italics added.)
The decisions and the statute cited above and the comments by eminent text writers make clear the rule that where, as here, *180a legal life tenant has disregarded his fiduciary duty to remaindermen and has disposed of all personalty in the fund of which he had only the life use and in doing so has kept no record of such disposition, he or the representatives of his estate are under the legal duty to establish that the funds for which his receipt was given were not misused.
If, as here, such proof cannot be made, the law will presume him liable for any loss and his estate must bear that loss. If the rule were otherwise a life tenant, or a fiduciary of any type, could immunize himself from a surcharge by destroying, or by failing to keep, a record of his acts.
In the present case the record leaves us in no doubt that the life tenant’s death stilled the only voice that could tell what became of the fund, the use of which was made available to him by his wife. Death, however, should not now serve to permit the life tenant’s estate to escape a surcharge in the amount legally due to remaindermen.
The Surrogate’s opinion herein suggests that “ This court has equitable powers to achieve the ultimate goal * * Mindful, as we are, that the will of the life tenant’s wife is unmistakable evidence of her intention to withhold from her husband the right to invade the principal of the fund which she afforded him, we think a rule more appropriate to this record than the Surrogate’s suggestion is a statement by Rolt, L. J., in Cooper v. Martin (L. R. 3 Ch. App. 47, 58) —“ equity * * * will never uphold an act which will defeat what the person creating the power has declared, by expression or necessary implication, to be a material part of his intention”. (Cf. Farmers’ Loan & Trust Co. v. Mortimer, 219 N. Y. 290, 294.)
The order should be reversed and the proceeding remanded to Surrogate’s Court for the entry of a decree surcharging the estate of the deceased life tenant in such amount as may be found due remaindermen legally entitled thereto.
Coeway, Desmond, Dye and Fitld, JJ., concur with Van Voorhis, J.; Lewis, Ch. J., dissents in opinion in which Froessel, J., concurs.
Order affirmed.