(dissenting):
íhis action was brought for an accounting by a trustee. On or *94about tbe 13th day of January, 1853, Nan. Post of the county of Herkimer died, leaving him surviving the plaintiff his widow. He left a last will and testament which was admitted to probate, and William S. Benchley and Henry N. Safford, the executors therein named, qualified and entered upon their duties as such. Under the will the plaintiff was given the use during her widowhood of the real estate therein mentioned, and subsequently andón the 20th day of January, 1865, William S. Benchley, the then sole surviving executor, under a power of sale given in the will, sold and conveyed the real estate of which the plaintiff was given the use, to one Sarah Keith for the sum of $1,800, the plaintiff joining with him in the conveyance. On the same day the executor executed and delivered to the plaintiff a bond of which the following is a copy:
“ Whereas, Betsey Post of Bochester, in the county of Monroe, State of New York, widow of Nan. Post, late of Newport, in the county and State aforesaid, is, under the last will and testament of her said husband, entitled to the use and occupation during her widowhood, of the house and lot situated in the village of Newport, wherein the said Nan. Post lived at the time of his decease.
“ And, whereas, William S. Benchley, surviving executor of the last will and testament aforesaid, by virtue of the power therein to him given to sell the real estate of the testator and to convey the same, has this day sold and conveyed the said house and lot by deed to Sarah Keith, and in which said deed the said Betsey Post has joined and has forever released and quit-claimed unto the said Sarah Keith all her right, title and claim to the premises conveyed.
' “ And, whereas, as a consideration for such release, it was agreed by and between the said William S. Benchley, as such executor as aforesaid, and the said Betsey Post, that the said executor should annually, after the first day of March next, during the widowhood of the said Betsey, pay, or cause to be paid, to her the sum of seventy-five dollars.
“ Now, therefore, know all men by these presents, that I, William S. Benchley, surviving executor of the last will and testament of Nan. Post, late of Newport, deceased, as such, am held and bound unto Betsey Post, of Bochester, Monroe county, N. Y., in the sum of one thousand and seventy-two dollars, or to her certain attorney, executors, administrators or assigns, for which payment, well and *95truly to be made, I bind myself as sucb executor as aforesaid, sealed with my seal and dated this 20th day of January, A. D. 1865.
“ The condition of this obligation is such that if the above bounden obligor shall and does well and truly pay, or cause to be paid, to the above obligee or her certain attorney, executors, administrators or assigns, so long as she shall be and remain the widow of Dan. Post aforesaid, the sum of seventy-five dollars on the first day of March in each and every year after the first day of March next, then this obligation to be void, otherwise of force.
“ (Signed) WILLIAM S. BENCHLEY. [l. s.]
“ Summing Executor, etc.
“BETSEY POST.”
Pursuant to the provisions of this bond, Benchley has annually paid to the plaintiff the seventy-five dollars therein mentioned. After the commencement of this action Benchley died. The defendant requested the referee to find that the plaintiff accepted the annuity of seventy-five dollars paid annually in lieu of the use and occupation of the premises given to her under the will. This the referee refused to find, and instead thereof found that, as between the plaintiff and the defendant’s testator, the bargain on her part to .take seventy-five dollars for her interest in the real estate and the fund arising from the sale thereof was without consideration. This finding was excepted to.
The evidence in the case, aside from that established by the records, was stipulated by the parties. We have no fault to find with the views of the referee to the effect that a power in trust given to executors to sell real estate devised by will is valid, and that such power is not inconsistent with the devise, but the estate vests in the devisee subject-to the execution of the power, and that in case of sale under the power the devisee and remaindermen take the same interest in the proceeds that they had in the land, and that, in the case under consideration, the plaintiff, after the sale, was entitled to the use of the income derived from the $1,800 received by the executor on the sale of the land. But, at the time of making the sale, she took from Benchley, the executor, the bond in question, which was also signed by her, in which it is stated that as a consideration for such release it was agreed by and between *96Benehley, as executor, and herself, that he should annually, after the first day of March next, pay to her the sum of seventy-five dollars during her widowhood. It would thus appear that she executed the deed, releasing her interest in the real estate, in consideration of the annual payment of the sum named, and that the executor obligated himself to pay that sum annually during her: widowhood. It appears to me that there was a consideration ample to sustain this contract. It is true that at that time the rate of interest prescribed by statute upon the $1,800 would exceed seventy-five dollars called for by the bond, but the fees and expenses of the trustee in keeping the same properly invested, together with taxes, etc., should be considered together with the further fact that the condition of the money market may so change as to make it difficult or impossible to collect that rate of interest. The bond requires seventy-five dollars to be paid annually without regard to the rate of interest that could be obtained upon the money. It is a well known fact that for some years it has not been easy to safely invest money and procure the rate of interest allowed by law; that money in large quantities has been loaned at four and even three and one-half per cent interest, and it may, in the future, be difficult to get even that amount, so that the use of the money in question would not amount to the sum called for by the bond. It consequently appears to me that there is a consideration in the bond itself, by which the executor agrees to pay her that sum even though the interest should not amount to one-half thereof.
Again, it is a conceded fact that for twenty years she has annually accepted the seventy-five dollars paid her by the executor, and no question appears to have been made until this action was brought. It was paid to her, under the express provision of the bond, as a consideration for her release of her life estate in the realty, the legal effect of which is that it was in lieu of the use and occupation of the premises given her under the will.
Again, there is no claim or allegations of fraud. There has been no tender or offer to surrender the bond in question. The judgment entered does not attempt to nullify or cancel it; it, therefore, remains a valid instrument and binding upon the defendants in this action. They may, in the future, be compelled to pay the annuity therein provided, even though the interest upon the money falls *97short of that amount, so that, under the judgment entered, they are required to account for the interest received as the personal representatives of the trustee in the past, and in the future they may be required to pay the annuity provided for in the bond.
¥e are aware that trustees will not be permitted to deal with the estate for their own benefit, or to sell or transfer to themselves the trust property; that the courts will scrutinize with care the dealings between the trustee and the oesUd que trust, but there is nothing in the transaction disclosed in tins case that appears to us suspicious, unfair or unreasonable. The real estate in question consisted of a house and lot located iñ a country village, and it is not surprising that the plaintiff found that the annuity was more valuable than the use, after deducting taxes, repairs, etc., and that she was willing to join in a sale provided she could be guaranteed the seventy-five dollars per year. For twenty years and upwards she has acquiesced in this contract, has received her - money, and, in the absence of fraud, it does not appear to us just or equitable that she should now be permitted to recede from it.
Dwight, J., not sitting.Judgment affirmed, costs to abide final award of costs.