concurring in part and dissenting in part.
I am not able to concur in the opinion of the majority of the court with reference to the sum which the court ordered to' be paid to Mrs. Crutchfield.
Dr. R. A. Patterson died in 1912. The material parts of “Item III” of his will, which for more ready reference I have divided into subdivisions a, b, c, d and e, read as follows (italics mine) :
(a) “I give and devise one other one-sixth of my property, real, personal and mixed, to R. Fuller Patterson as trustee for my daughter, Elizabeth G. Patterson, to be held by him for the sole use and benefit of my said daughter during her life, free from the control and liabilities of any husband she may take, and at her death, this one-sixth of my property, or so much thereof as shall then remain in the hands of the trustee shall pass to certain remaindermen therein designated.
(b) “The said R. Fuller Patterson as trustee for my daughter, and any trustee who may be substituted in his place, is *781authorized and empowered to sell any portion of the trust property for the purpose of changing the investment and producing a better income, when, in his judgment and that of my said daughter, it shall be judicious to do so.
(c) “And if the income from the trust property shall be insufficient to provide for her proper maintenance and support, of which the trustee shall be the judge, he is authorized and empowered to sell for that purpose any portion of the trust property and use so much of the proceeds (principal and interest) as he may deem necessary;
(d) “And, if in the judgment of the trustee it shall at any time be more to> the interest of the trust property and all concerned therein to borrow money for the support of my said daughter than to sell for that purpose, as above authorized, he is empowered to do so, and to pledge, hypothecate or convey in trust any part of the trust property, to secure the money so borrowed.
(e) “In all cases of sales or encumbrances of the trust property, as hereinbefore authorized, the trustee shall act at the request of my said daughter and with her consent, to be evidenced by her uniting with him, in the deed or writing making the said sale or encumbrance.” * * *
Elizabeth G. Patterson married E. M. Crutchfield. The trustee, R. Fuller Patterson, resigned and the court, on June 7, 1915, appointed Old Dominion Trust Company as substituted trustee, which in time was merged into the State and City Bank and Trust Company, which became and is now the substituted trustee under Item III of Dr. Patterson’s will.
During the period June 7, 1915, to August 15, 1921, the income-bearing property in the hands of the trustee had been increased by receipts from the executor of R. A. Patterson and the sale of real estate belonging to the trust estate, and, on July 23, 1920, was thus increased by notes aggregating $25,000.00.
As shown by the report of the trustee, the corpus of this *782trust estate consisted on August 15, 1921, of the following property: (1) Stock of the par value of $21,600.00, the appraised value of which was much in excess of the par value thereof; (2) bonds and notes of the par value of $73,516.66; (3) four parcels of improved real estate in the city of Richmond of the “book value” of $10,450.00; and (4) the unimproved real estate, aggregating approximately twenty-five acres, for the sale of which this suit was brought in 1922.
The gross income received by the trustee from the trust estate, the net income (after payment of all taxes and expenses incident to the administration of the trust), and the amount paid to Mrs. Crutchfield during the period June 7, 1915, to August 15, 1922, were as shown below:
Year Ending Gross Income Net Income Amt. of Income Disbursed to Mrs. Crutchfield
June 7, 1915, to
August 15, 1916. $4,627.52 $3,493.71 $2,933.59
August 15, 1917. 5,355.66 3,624.33 4,019.89
August 15, 1918.. 5,295.94 3,735.01 3.775.00
August 15, 1919.. 5,805.46 3,847.72 4.206.01
August 15, 1920.. 5,919.76 3,738.12 3.400.00
August 15, 1921.. 7,543.90 5,473.09 4.609.00
August 15, 1922.. 7,445.43 5,009.47 6,286.85
It, therefore, appears that in the fiscal year in which this suit was brought Mrs. Crutchfield received net income from this trust estate of over $6,000.00, and the evidence in this suit further shows that, eliminating any sums which the trustee paid to Mrs. Crutchfield during the period 1922-1927 from what is erroneously conceived to be income from the proceeds of sale of the twenty-five acres of real estate involved in this suit, Mrs. Crutchfield received from the trust estate in each fiscal year (year ending August 15th) a net income during this period of $5,500.00 or more.
*783During the period August 15, 1915-1922, the trustee does not appear tO' have been of the opinion that Mrs. Crutchfield was receiving a net income insufficient for her proper maintenance and support, or that her circumstances made it necessary or proper for it to exercise its power under subdivision “c” of Item III of the will of Dr. R. A. Patterson and make to her any payments from the corpus of the estate for her maintenance and support. Certainly the trustee made no payments to her from the corpus of the estate, and there is no intimation that Mrs. Crutchfield had ever requested that payments be made to her from the corpus of the estate.
However, the trustee, at the request of Mrs. Crutchfield, in order to convert it into income-bearing securities, had been trying for some time to find a purchaser for the twenty-five acres of unimproved real estate involved in this suit, which lies partly within and partly without the corporate limits of the city of Richmond, and to this end had listed this property for sale with a number of real estate agents.
Finally, on May 19, 1922, it received through C. L. & H. L. Denoon, real estate agents, an offer from Henry S. Wallerstein to purchase this twenty-five acres of land for $75,000.00, payable $10,000.00 cash, and the residue in five years from August 1, 1922, with interest at six per cent per annum, payable semiannually. The offer stated that “this offer is made subject to acceptance or rejection of the court.”
Old Dominion Trust Company, the trustee, at the request of Mrs. Crutchfield, accepted this offer, and on June 6, 1922, filed its bill in the Circuit Court of Henrico county, seeking to have its action ratified and confirmed by the court. All the remaindermen, some of whom were infants, Mrs. Crutchfield and Mr. Wallerstein were made parties defendant to the bill.
The bill alleges that this property is non-income bearing and should be sold so as to convert it into income bearing property; that at the request of Mrs. Crutchfield the trustee .had been trying for some time to sell the property; that the offer *784of Wallerstein is a good price for the property and should be accepted; that a “hardship” results to Mrs. Crutchfield “from this property not having been sold, both with respect to the heavy taxes she has to pay and also with respect to the long time during which she has enjoyed no income from this portion of her trust estate.” It further alleges that the trustee is “of the opinion that the will of R. A. Patterson * * *, and the above mentioned request of Elizabeth Patterson Crutchfield, give to your orator the right to sell and convey the said real estate without the aid or intervention of any court, but since the amount involved is so large, your orator deemed it expedient to ask for the said advice of this honorable court in this matter.”
With the bill is filed, as an exhibit, a letter from Mrs. Crutchfield addressed to Old Dominion Trust Company, in which she requests that it accept Wallerstein’s offer, and states that she is ready to join in a deed executed to- him in pursuance thereof. This letter reads, in part, as follows:
“During the period from the death of my father until the time when you were substituted as trustee, my income from the trust estate left me by my father, was extremely small, and since the date of your qualification as trustee, it has likewise been small in proportion to the value of the trust estate.” * * *
“I wish to point out further that the above mentioned * * * unimproved real estate constitutes the chief portion of the trust estate, and for practically seven years now I have received no income whatever from the same, and, in addition thereto', have had to pay out of my income heavy taxes thereon. At the present time I am paying taxes on the property at the rate of approximately a thousand dollars a year.
“I call your attention to the wording of the said Item III of my father’s will, which shows that this trust estate was clearly intended to be one which should produce an income for me, the said will providing that if the income from the trust estate is insufficient to provide for me proper maintenance and *785support, the trustee is authorized and empowered to sell any portion of the trust property and to use the proceeds, both principal and interest, for the purpose of providing for my maintenance and support, and it is further provided that in all cases of sale, the trustee shall act at my request and with my consent.
“This trust was clearly meant to provide an income for me, and for practically seven years now the chief bulk of the trust estate has produced no income whatever, and, on the other hand, I have had to pay heavy taxes thereon, legal fees, trust commissions, court fees and heavy repairs to real estate, thus reducing my income by at least two-thirds of its normal value. For these reasons I desire to state most emphatically that I desire this property sold * * * and that this portion of the trust estate be thereby made to produce an income, and that I be relieved from the hardship of having to continue paying taxes on this property without receiving any income therefrom.”
The bill prays that the acceptance by the trustee of Waller-stein’s offer be ratified and confirmed; that it be authorized to convey the property to Waller stein and pay C. L. & H. L. Denoon $3,750.00 for their services in making the sale; that it be authorized to pay the costs of this suit; that a reasonable attorney’s fee be allowed its counsel, and “that all such other further and more general relief may be granted your orator as the nature of its case may require, or to equity seem meet.”
Neither the trustee in its bill nor Mrs. Crutchfield, in her letter filed therewith, alleges that the net income being received by her is insufficient for her proper maintenance and support, or that any payment from the corpus of the trust estate should be made to her for that purpose, nor can the prayer of the bill be construed to ask that the trustee be authorized to pay to Mrs. Crutchfield any sum from the corpus of the trust estate.
Plainly, both the trustee and Mrs. Crutchfield, in accepting Wallerstein’s offer and instituting this suit, were acting under subdivision “b” of Item III of Dr. Patterson’s will, and had *786no intention of invoking the exercise of the power conferred upon the trustee under subdivision “c” thereof.
When the trustee discovered that the remaindermen proposed to file answers opposing the acceptance of Wallerstein’s offer on the ground that the price was inadequate, the trustee and Mrs. Crutchfield moved the court to dismiss the bill. A. W. Patterson, M. C. Patterson and James T. Patterson, three of the remaindermen, appeared and opposed the motion to dismiss the bill and asked leave to file their answer.
The answer tendered by these three remaindermen asserted that the Wallerstein offer should not be confirmed because it was “entirely too' low,” and “much below the true market value of this property.” The respondents further assert that they have no disposition to' interfere unduly with the sale of Mrs. Crutchfield’s trust estate, and that they fully appreciate her position in wanting to convert unproductive land into interest-bearing investment, and that to this end they offer to purchase the property at $75,000.00, payable.$5,000.00 cash and the residue payable five years after date, with interest at six per cent per annum, payable semi-annually. The answer specifically asked that the Wallerstein offer be disapproved and rejected; that their offer be accepted, and that, as the sale is for the sole benefit of the life tenant, the costs incident to this suit be ordered paid by Mrs. Crutchfield and not out of the corpus of the estate.
The court entered its decree on July 21, 1922, refusing to permit this answer to be filed, and dismissed the bill upon the motion of the trustee, in which Mrs. Crutchfield and W. Pernet Patterson, one of the remaindermen, joined. Thereupon, James T. Patterson, A. W. Patterson, and M. C. Patterson immediately gave notice of their intention to' appeal.
Six days after the decree dismissing the bill was entered, Wallerstein having receded from the provision that his offer was made “subject to acceptance or rejection of the court,” the Old Dominion Trust Company, by deed dated July 27, 1922, in *787which Mrs. Crutchfield joined, conveyed the property here in question to Wallerstein at the price and upon the terms mentioned in his offer, and Wallerstein paid to the trustee $10,-000.00 in cash and executed and delivered to the trustee his note for $65,000.00, payable five years after date, with interest at six per cent per annum, payable semi-annually.
Subsequently, James T. Patterson, M. C. Patterson and A. W. Patterson prosecuted their appeal to this court from the decree dismissing said bill, and in an opinion handed down on June 12, 1924, this court reversed the decree and remanded the cause with direction to the trial court to reinstate the cause and permit the appellants to file the answer which they had tendered. (See Patterson v. Old Dominion Trust Company, 139 Va. 246, 123 S. E. 549.)
When the cause was reinstated, A. W. Patterson and M. C. Patterson filed the answer, which had theretofore been tendered by them and James T. Patterson, who had died in the meantime, and the court entered its decree permitting the same to* be filed, and ordering that it be treated as a cross-bill.
The three infant remaindermen, Fuller Patterson, James Patterson and Martha Patterson, then filed their answer and their amended and supplemental answer, both by Henry W. Oppenheimer, their guardian ad litem. In their amended and supplemental answer they set forth the deed made by Old Dominion Trust Company and the circumstances under which it was executed and delivered to Wallerstein, and that the property has greatly enhanced since July 21, 1922, and is now worth approximately $125,000.00, and ask that the deed to Waller-stein be set aside and declared null and void, and that the cause be then proceeded in as it would have been proceeded in had the suit not been dismissed and had the deed to Wallerstein not been executed; that the offer of Wallerstein to purchase the property be rejected, and that the court order the property offered for sale at public auction, but put the remaindermen, *788who had offered to purchase the property, upon terms to treat their offer as a binding opening bid.
Answers were also filed by other parties in interest, but they need not be noticed here.
The offer of $75,000.00 made by the Pattersons was a better net price by $3,750.00 than the offer made by Wallerstein, due to the fact that it had been procured by real estate agents to whom there was to be paid a commission of $3,750.00, and before any further decree was entered on the merits of the cause, Wallerstein offered to pay the further sum of $3,750.00 for the property so as to make the sale to' him equally as good a proposition as a sale to the Pattersons at their offer of $75,000.00.
Depositions were then taken on the issues presented by the bill and answers.
No testimony was introduced for the purpose of showing, or tending to show, that the net income being received by Mrs. Crutchfield was insufficient for her proper support and maintenance, or suggesting the propriety of the trustee making any payments to her from the corpus of the estate for that purpose.
By its decree entered May 13, 1926, the court set aside and annulled the deed from Old Dominion Trust Company to Wallerstein and the deed of trust executed by Wallerstein to secure his note for $65,000.00, given for the deferred payments, and ordered the trustee to return to Wallerstein “such of the notes, .both principal and interest, drawn by Henry S. Wallerstein, representing deferred installments of’ purchase money * * * remaining unpaid in its possession.” The decree further ordered that the property here involved be offered for sale at public auction by a commissioner of the court, and that the offer of the Pattersons and of Wallerstein be retained “for further consideration and action by it, in the event that a higher bid shall not be made for said real estate,” and that, as the offer of the Pattersons and of Wallerstein (in its final form) each represents the net sum of $75,000.00, with interest at six *789per cent per annum from July 27, 1922, plus taxes on the land from July 27, 1922, no bid should be received for less than the aggregate of these sums.
From this decree A. W. Patterson and M. C. Patterson, executors under the will of James T. Patterson, deceased, appealed to this court. In an opinion handed down by the Special Court of Appeals on December 22, 1927, this decree was affirmed, and the cause remanded for further proceedings. (See Patterson v. Old Dominion Trust Co., 149 Va. 597, 140 S. E. 810, 141 S. E. 759.)
While this appeal was pending, the city of Richmond condemned 1.474 acres, of this land for Malvern avenue and a narrow strip for the widening of Patterson avenue at the sum of $10,657.54. The net proceeds from the condemnation of these two parcels of land was paid over to the trustee after the sale at auction, hereinafter mentioned, was confirmed.
When the case was remanded it was transferred to Hustings Court, Part Two-, of the city of Richmond, which on April 21, 1928, entered its decree ordering its commissioner to offer this land, less that condemned by the city of Richmond, for sale at an opening bid of $100,000.00.
The property, less that condemned by the city, was put up at auction under this decree on May 15, 1928, and was sold to Housing Investment Corporation at $126,000.00, $31,500.00 cash and the. residue, $94,500.00, payable five years after date, with interest at six per cent per annum from May 15, 1928, payable quarterly. This sale was confirmed by the court by decree entered June 12, 1928, and the terms thereof have been complied with, and a deed executed to the Housing Investment Corporation.
During the pendency of this litigation Wallerstein paid to the trustee $10,000.00 on July 27, 1922, as the cash payment on the purchase he supposed he had made, and also the first six semi-annual installments of interest falling due on his $65,000.00 note, i. e., interest from July 27, 1922, to July 27, *7901925, aggregating $11,659.54. He also paid State, county and city taxes on the property for the years 1922-1925, aggregating $2,561.84.
After the confirmation of the sale to Housing Investment Corporation, Wallerstein petitioned the court to order these sums repaid to him by the trustee, together with interest at six per cent per annum thereon from the time he paid them, and the court by its decree entered March 12, 1929, ordered the repayment to Wallerstein of the following sums: (a) Cash payment of $10,000.00, with interest from July 27, 1922, to June 29, 1929, at six per cent per annum; (b) interest payments made by him, as follows, with interest at six per cent per annum from date of payment until repaid to him:
$1,887.50 with interest from Jan. 29, 1923
1.950.00 with interest from July 27, 1923
1,952.94 with interest from Feb. 5, 1924
1.950.00 with interest from July 31, 1924
1,959.10 with interest from Feb. 24, 1925
1.960.00 with interest from Sept. 2, 1925
$11,659.54
(c) taxes paid by Wallerstein, as follows, with interest at six per cent per annum from date of payment till repaid:
$ 405.21 with interest from July 27, 1923 •
49.75 with interest from Nov. 30, 1923
127.58 with interest from Apl. 28, 1924
494.80 with interest from May 5, 1924
49.75 with interest from Nov. 29, 1924 43.47 with interest from Nov. 30, 1924
1,341.53 with interest from Apl. 21, 1925
49.75 with interest from Nov. 30, 1925
$2,561.84
The court further decreed that all the sums ordered to be re- v paid to- Wallerstein, including the interest thereon, be charged against the corpus of the trust estate.
Upon the execution of the deed to Wallerstein on July 27, 1922, the trustee paid to' C. L. and H. L. Denoon $3,750.00 as commissions on the sale. The net income received from the *791investment of the residue of Wallerstein’s cash payment of $10,000.00 and from- the interest payments made by Waller-stein are included in the gross income received by the trustee and the net income paid by the trustee to Mrs. Crutchfield during the annual fiscal periods 1923-1926, as will appear from the below statement.
Year Ending Gross Income Interest paid by Wallerstein included in gross income Net Income Amount of income disbursed to Mrs. Crutchfield
Aug. 15, 1923.... $12,365.44 $ 3,837.50 $10,086.80 $10,097.20
Aug. 15, 1924.... 12,017.42 3,902.94 10,088.99 10,094.81
Aug. 15, 1925.... 10,281.16 1,959.10 8,136.54 7,739.01
Aug. 15, 1926.... 10,612.12 1,960.00 7,960.26 8,264.50
Aug. 15, 1927.... 9,649.93 6,689.89 6, 673.72
Aug. 15, 1927, to Sept. 1, 1928... 10,589.63 5,379.29 5,163.64
The gross income for the last period includes $1,455.46 income received from the bank on the cash payment made by Housing Investment Corporation and the first quarterly installment of interest on its $94,500.00 note, and the charges against gross income include $1,236.92 for unpaid taxes for the years 1925 and 1926 on the real estate involved in this suit. All the costs of this suit appear to have been charged by the trustee to the corpus of the trust estate.
On October 30, 1928, Mrs. Crutchfield filed her petition in this suit, which reads as follows :
“Your petitioner, Elizabeth Patterson Crutchfield, respectfully represents:
“1. That she is the life tenant of the property involved in the above styled suit.
“2. Your petitioner is advised, believes and claims that she was entitled on September 10, 1928, to receive from the said substituted trustee the sum of seventeen thousand six hundred *792and seventy-four dollars and ninety-five cents ($17,674.95), this amount being fully set forth and described in a statement made and prepared by A. M. Pullen & Company, certified public accountants, which is marked E. P. C. Exhibit A, and attached hereto and made a part hereof. Your petitioner specifically sets forth that the aforesaid claim is made without prejudice to any other rights or claims that she may have, and shall in no way affect her right to file an additional claim at any time in the future against the corpus of this estate.
“Wherefore, your petitioner prays that she may file this petition and that this court will direct the said substituted trustee to pay her the said sum of seventeen thousand six hundred and seventy-four dollars and ninety-five cents ($17,674.95).”
The statement referred to in this petition, marked “E. P. C. Exhibit A,” makes it clear just what Mrs. Crutchfield is claiming. The statement is entitled “Amounts due Mrs. Elizabeth Patterson Crutchfield for accrued income and advances made on 25.04 acres Patterson avenue property from July 22, 1922, to September 10, 1928;” and includes two classes of items— one class headed “Accrued Income” and the other class headed “Advances.” Under the heading “Accrued Income” are entered seven items, each item described as “S/A Interest on $65,000.00 note of Henry S. Wallerstein.” Six of these items are for $1,950.00 each, and are listed as having fallen due at six months’ intervals beginning January 27, 1926. The seventh item is for $476.66, listed under date of September 10, 1928, and represents six per cent interest on $65,000.00 from July 27, 1928, to September 10, 1928. The seven items (without any interest thereon) aggregate $12,176.66. Interest on these seven items is added from the respective dates under which they are listed to September 10, 1928, and the “total accrued income and interest thereon” is listed as $13,139.96. Under the heading “Advances” are listed the taxes on the Patterson avenue property paid by the trustee for the years 1922-1927, inclusive, aggregating $4,547.12, which, with interest from the *793respective dates of payment thereof to September 10, 1928, amount to $5,064.73. From the amount of these taxes is deducted the amount of taxes ordered to be refunded to Waller-stein, $405.21, which with interest to September 10, 1928, amount to $529.74, making the net “total advances and interest thereon” $4,534.99.
No answer is filed by any party to this petition, but A. W. Patterson and M. C. Patterson, in their own right and as executors and trustees under the will of James T. Patterson, deceased, and also' the guardian ad litem for the infant remaindermen, opposed the granting of the prayer of the petition.
Mrs. Crutchfield, in her petition, claims these sums as income of the trust estate improperly withheld from her. Neither in this petition nor anywhere else does she or the trustee allege that the income being received by her is insufficient to properly maintain and support her, or that she is entitled to have any part of the corpus of the trust estate paid to her for such purpose. The reports of the trustee, hereinbefore quoted from, show the amount of the gross income of the trust estate and the amount of net income disbursed to her, but there was no evidence introduced to show that this, exclusive of all income from the Wallerstein cash and notes, has been insufficient for her proper maintenance and support.
It is apparent from the record that in paying to Mrs. Crutch-field the income received from the cash payment made by Wallerstein and the interest sums paid by him, the trustee was acting upon the assumption that it was paying to her income which she was legally entitled to demand, regardless of the size of her income, and at no time has assumed to pay to her any sum from the corpus of the estate in the exercise of its power under subdivision “c” of Item III of Dr. Patterson’s will.
The court, by its decree of March 12, 1929, decreed as follows, with reference to the claim of Mrs. Crutchfield:
“(1) That the said petitioner’s claim for interest on $75,-*794000.00 (so far as not already paid her), amounting to the principal sum of $12,176.66, should be and is allowed without interest, and the said petitioner is also entitled to and shall retain all interest which has been paid to her during the pendency of this litigation; (2) that in view of the foregoing provision, the said petitioner’s claim for the principal sum of $4,141.91, on account of taxes paid by her since July 27, 1922, on the property herein mentioned, should be and is disallowed, and (3) that the aforesaid allowance of $12,176.66 (without interest) should be reduced by the sum of $2,561.84, being the amount (without interest) which Henry S. Wallerstein paid as taxes on the said property, during the period when the said petitioner received income from said property and for which payment the said Wallerstein has been reimbursed from the corpus of the fund under the control of the court in these proceedings. Wherefore, the court doth hereby direct the said State-Planters Bank and Trust Company, substituted trustee, to pay to the said Elizabeth Patterson Crutchfield out of the corpus of said fund the sum of $9,614.82 (being the difference between the said two' sums of $12,176.66 and $2,561.84), with interest from this date until paid, at the rate of six per cent per annum, for which payment said substituted trustee shall receive credit in the settlement of its accounts. And the said sum is authorized to be paid to the said Elizabeth Patterson Crutchfield without prejudice to any other rights or claims which she may have and without in any way affecting her right to file any further claim or claims on account of payment of taxes or any other matter arising prior to July 27, 1922, at any time in the future against the corpus of her father’s estate.”
The note for $94,500.00 given by Housing Investment Corporation for its deferred payment bears interest from May 15, 1928, and on August 14, 1928, the trustee received the first quarterly installment of interest thereon, $1,417.50, and on the same day paid to Mrs. Crutchfield $1,313.17 thereof. Yet the court, in its decree, orders the trustee to pay to Mrs. Crutch-*795field interest at six per cent on $65,000.00, the amount of the Wallerstein deferred payment note, from May 15th to September 10, 1928, amounting to $1,246.05. Upon what theory this was done by the court it is difficult to understand.
This seems to me to be clearly erroneous on any theory of the case. But in the view which I take of the case, the error of the court goes much further.
It is plain that the effect of the several decrees entered in this cause was to decree that there had been no sale of this property until at the auction sale held on May 15, 1928.. What then sold was corpus of the estate, and no part of the purchase price paid by the Housing Investment Corporation can be considered or dealt with as income of the estate.
It may be that during the lapse of time from July 27, 1922, to May 15, 1928, the value of this land increased from $75,-000.00 to $126,000.00, plus the $10,979.92 received from the condemnation of a part thereof, but this increase was an increase in the value of a part of the corpus of the estate. It was not income within the meaning.of Dr. Patterson’s will.
It is true that Wallerstein had made an ineffectual attempt to purchase this land, and had paid a portion of the purchase price offered by him, six years’ interest on the residue of the price offered by him, and the taxes for several years, .but these facts cannot, under the decrees in this case, be deemed to have changed the whole, or any part, of this portion of the corpus of the trust estate from non-income producing land into income-producing personal property. Where a life tenant receives an offer to purchase land in which he has a life estate, and submits it to the court for confirmation, if the court refuses to confirm the sale, but later sells it in that suit at a better price, the life tenant is not entitled to have the court consider the property pro tanto converted into income-bearing property as of the time the offer rejected would have effected such conversion. Pie is not entitled to have the court pay to him from *796the proceeds of the sale interest on the amount of the rejected offer pending the litigation.
The effect of the decrees in this cause is that the portion of the corpus of the trust estate here involved remained in kind unproductive real estate until the sale of May 15, 1928, and that the $10,000.00 cash payment made by Wallerstein, the $65,000.00 note executed by him by way of interest on said note are, and always were, the property of Wallerstein, and that he is not only entitled to have them returned to him, but also is entitled to receive from the trustee interest on said $10,-000.00 and the interest payments made by him from their respective dates of payment until repaid to him. Certainly, then, the trust estate cannot be deemed to' have received, or been entitled to receive, any income from the Wallerstein cash or notes.
If this be true, no sums have at any time been payable to Mrs. Crutchfield by the trustee for or on account of income derived by the trustee from that portion of the corpus of the estate here involved, except such as has accrued since the sale of May 15, 1928, from the proceeds of that sale, for prior to that time it produced no income.
The trustee, acting under a mistaken assumption, has paid to Mrs. Crutchfield during the period August 1, 1922, to September 1, 1928, as income of the trust estate the following aggregate items, which were not income of the trust estate: (1) The net income received by it on $6,250.00 (the $10,000.00 cash payment made by Wallerstein, less $3,750.00 paid the Denoons) ; (2) the sum of $11,659.54 paid by Wallerstein as interest on his $65,000.00 note, less trustee’s commission of five per cent and taxes accrued on account of said note and the supposed income therefrom; (3) $2,561.84, which the trustee should have paid for taxes on the real estate here involved, but which were paid by Wallerstein.
Just what the principal amount of these items aggregates is not easily computed from the record here before us, but apparently they exceed $16,000.00.
*797In addition to this, the trustee has paid to itself five per cent commissions on the first two- items of supposed income above mentioned, aggregating over $600.00.
Having received as net income these sums, which cannot in any sense be deemed to have been income of the trust estate, Mrs. Crutchfield now asks that she be paid as income'from the trust estate an amount equal to six per cent per annum on $65,000.00 from July 27, 1925, to September 10, 1928, amounting to $12,176.66.
The court has ordered this sum, $12,176.66, less $2,561.84 paid by Wallerstein for taxes which should have been paid from the income of the estate, making a net amount of $9,-614.82 paid to Mrs. Crutchfield by the trustee out of the corpus of the estate.
Clearly, Mrs. Crutchfield, under the provisions of Dr. Patterson’s will giving her the income from the trust estate, has not been entitled to receive the aforesaid items aggregating approximately $16,000.00, which have been paid to her by the trustee, nor is she now entitled under such provision to have paid to her the $9,614.82, which the court in the decree here appealed from, orders the trustee to pay her, because there has been no such income received by the trustee from the trust estate. The trial court apparently recognized that this is true, for it specifically orders that the $9,614.82 be paid to her out of the corpus of the estate.
If, then, Mrs. Crutchfield be entitled to retain the sums aggregating approximately $16,000.00 paid to her by the trustee, and/or to receive payment of the $9,614.82 now ordered to be paid to her, it can only be because she was and is entitled to have such sums paid to her from the corpus of the estate, under the provisions of subdivision “c” of Item III of the will of Dr. Patterson, on the ground that the income of the estate is insufficient to properly maintain and support her. For the only conditions under which the trustee may pay to her any part of *798the corpus of the estate is that the income is insufficient for this purpose.
As I have heretofore pointed out, neither upon the pleadings nor upon the proof is this record such as to' warrant the court ini decreeing that the net income from the trust estate (eliminating all income supposed to have been received from the Wallerstein cash and note) has been or is insufficient to properly maintain and support her. Further than this, the discretion to decide whether the income has been or is insufficient for such purpose is vested in the trustee, and not in the court, and the trustee has not, so far as this record discloses, adjudged that the income has been or is insufficient for such purpose, nor has Mrs. Crutchfield so asserted or made any request of the trustee to so- decide.
If I understand the opinion of the court correctly, it holds that the trial court erred in decreeing that Mrs. Crutchfield should pay to Meredith & Meredith, her attorneys, a fee of $2,000.00 for legal services rendered to her by them in this suit, because “there is no pleading in this cause properly raising any question between the parties (i. e., Meredith & Meredith and Mrs. Crutchfield as to> the fee to be paid by her to them), and, therefore, the court exceeded its authority when it entered judgment against Mrs. Crutchfield.” This, I think, is correct.
But neither in the pleadings nor in the proof is the right of Mrs. Crutchfield to have the trustee pay her any portion of the corpus of the trust estate put in issue, and it seems to me that the principal applied to the judgment against Mrs. Crutchfield for attorney’s fee is also applicable to the decree in favor of Mrs. Crutchfield directing the trustee to pay to her a portion of the corpus of the estate. In the latter instance the decree of the court has gone outside the issues raised in the record, just as it did in ordering Mrs. Crutchfield to pay her attorneys a fee of $2,000.00.
For these reasons I am of opinion that the court should have ordered Mrs. Crutchfield to repay to the trustee all sums paid *799to her from the income derived from the Wallerstein cash payment and from the interest payments made by Wallerstein, with interest thereon at six per cent per annum from the dates of payment thereof to her, and also the amount of taxes, with interest thereon, which the court has ordered the trustee to repay to Wallerstein, and should not have ordered the trustee to pay to her the item of $9,614.82, which in the decree here appealed from it has ordered paid to her.
The commissions deducted by the trüstee upon the principal of the amount of the supposed sale to Wallerstein, it would appear, the court has treated as the amount that the trustee was entitled to for acting as special commissioner to sell the property at public auction; but the trustee should not be permitted to retain the commissions which it has paid to itself on the income received on the Wallerstein cash and note, and should be required to apply it on the sums ordered repaid to Waller-stein.
The questions, whether the trustee now had the authority to pay to Mrs. Crutchfield from the corpus of the estate any sums because it may be of opinion that in the past the income of the trust estate has been insufficient to properly maintain and support her, and whether the income is insufficient for her present and future proper maintenance and support, I think cannot be properly decided upon this record, as these questions have not been put in issue either by the pleadings or the proof.