Sterricker v. Dickinson. performed under a power, shall be valid as a power in trust. (1 R. S. 729. 5 Barb. S. C. Rep. 58.) This provision reani mates a class of trusts, under a new name. (4 Kent, 313.) The whole estate in law and equity is vested in the trustee, subject only to the execution of the trust; and if an express trust be created for any other purpose than those enumerated in the 55th section, no estate vests in the trustee; though if the trust authorizes the performance of any act lawful under a power, it becomes valid as a power in trust. (4 Kent, 310.) The trust attempted to be created by Mary Sutphen for the support, maintenance and education of her infant children, was certainly not unlawful in itself, but quite meritorious. The intention of the testator, when it shall have been ascertained from an examination of the will in connection with the situation of his property &c. at the time of making such will, must be carried into effect by the courts, so far as that intention is consistent with the rules of law. Although some of the objects for which a trust is created, or some future interest limited upon the trust estate, are illegal and invalid, if any of the purposes for which the trust was created are legal and valid and would have authorized the creation of such an estate, the legal title vests in the trustees during the continuance of such valid objects of the trust. (9 Paige, 528, Eckford's will.) Trustees take that quantity of interest only which the purposes of the trust require and the instrument creating it permits. The legal estate is in them so long as the execution of the trust requires it, and no longer, and then it vests in the person beneficially interested. (4 Kent, 310, note a.) A power in trust is a mere authority or right to limit a use, while an estate in trust is an estate or interest in the subject. A trustee is always invested with the legal estate, but this is not necessary with respect to the donee of the power. In the case of a power in trust there is always a person other than the donee or grantee of the power, which person is called the appointee, answering to the cestui que trust in a simple trust. (5 Barb. S. C. Rep. 652.) Every estate and interest not embraced in an express trust, and not otherwise disposed of, Sterricker v. Dickinson. remains in or reverts to the person who created the trust. (4 Kent, 310.) By the will of Mary Sutphen this farm is devised to the defendant in trust for these children, their and each of their heirs and assigns forever. The defendant cannot lay claim to the residue after the infant children have been properly supported, maintained and educated. It is one of the most familiar principles of equity that no one shall take advantage of a fiduciary relation between himself and another, to make gain to himself. When the defendant assumed the appointment of guardian and trustee he assumed also the duties and responsibilities of those offices. (5 Chit. 409.) The children have chosen to affirm the authority on which he professed to act, and he will not be allowed now to deny it. A trustee cannot be permitted to purchase trust property. An agent dealing in behalf of his principal, professing to settle and compromise a claim in behalf of his principal, can not take the entire fruits of the negotiation to his own use. (6 Paige, 359.) This was held where the declaration of the trust did not appear upon the face of the instrument, but in a case where to fulfil the demands of justice parol evidence was allowed, to prove the intention of the testator. (5 Barb. S. C. Rep. 58.) When the purposes for which an express trust has been created shall have ceased, the estate of the trustees shall also cease. (1 R. S. 730, § 67. 2 Sand. Ch. 296.) The purposes of the estate in trust or power in trust in respect to the plaintiff ceased upon her marriage and arriving at the age of twenty-one years. If any interest existed in Mary Sutphen undisposed of, either in remainder or reversion, by her decease the same became united to the beneficial estate of the daughter as heir at law, who is now seised of the same in fee. (4 Paige, 404.) And by the 47th section of the revised statutes, (Vol. 1, p. 727,) every person who is entitled to the actual possession of lands, and to the receipt of the rents and profits thereof in law or equity, is deemed to have a legal estate therein, commensurate with his beneficial interest in the premises, except in those cases where the estate of the trustee is connected with Sterricker v. Dickinson. The effect of some power of actual disposition or management. It is said by the counsel for the defendants, that the bill, in praying for an account and for partition, is multifarious, and that the relative situation of the parties is such as not to entitle the plaintiff to ask for partition. In the case of Hosford v. Merwin, (5 Barb. S. C. Rep. 54, 62,) there was a prayer to account and for partition, and the defendant was in possession claiming to hold adversely. The court say, this, as a general rule, would be sufficient ground for denying the application; but when the question arises upon an equitable title set up by either of the parties, the reason of the rule fails. The court will not entertain a bill for partition when the legal title is disputed or doubtful, because a court of law is the proper tribunal to determine such questions. But when the questions are such as belong to a court of equity, there can be no reason for suspending the proceedings short of complete justice between the parties. Courts of equity have concurrent jurisdiction with courts of law to decree partition and sales of land. (2 R. S. 329, 79. 1 Sand. Ch. 201. 4 Barb. S. C. Rep. 229.) Again; if the complainant has been ousted of his possession, or the premises are held adversely, the defendant should set up that defense by plea or answer. (3 Paige, 245, 6.) There is no evidence of ouster or adverse holding in this case. Indeed the purchase of the inter ests of the other heirs is rather a recognition by the defendant of the claim of the plaintiff, to some extent. HARVARD It is insisted by the defendant, that he should be allowed hisy SCHOOL account against Matthew L. Sutphen, and also against lary Sutphen, which accrued after the death of her husband and prIBRARY. vious to her own death; and also should be allowed one-th part of the aggregate expense laid out upon the five infant children, irrespective of the amount laid out for the plaintiff. How much property came into the defendant's hands from Mary Sutphen, besides the farm, does not exactly appear, though it probably was not of much value. I think the farm itself VOL. IX. 66 Sterricker v. Dickinson. should be free of any charge in respect to Mary Sutphen at the time it came into the hands of the defendant. It was intended that the avails should be for the entire benefit of the children. But the trustee or guardian has an equitable right to be allowed the sums actually expended by him in securing the title, and such sums as he may have expended for the support of the infant children respectively, beyond the value of their services. (6) Paige, 364.) And I consider the defendant's claims or accounts as to the four children were severally settled with them, as he purchased their shares; and that the only personal account which he is entitled to offset against the plaintiff is his proper charge for her support, maintenance and education, over and above the value of her services. I have read through the large volume of evidence in this case; and looking at the testimony of James Sutphen, who had the best means of knowledge, together with the testimony of Olive Palmer, Jane Hunt, and Almira Merry, as well as other testimony bearing upon the question, I think the plaintiff ought to be charged at least five shillings a week for three years, which would amount to about $100, saying nothing about her clothes and schooling. From all the testimony in the case I should put the value of the farm at $5222, and the annual rent at $239. I have arrived at this conclusion not without some hesitation, after a careful examination of the testimony; for I would not hastily disturb the report of the learned referee upon questions of fact; and I am well aware that a person who hears the testimony is generally better able to estimate its proper weight and effect than one who reads it on paper. But the authorities to which I am referred by the counsel for the plaintiff do not convince me that I am entirely precluded from correcting the report in these particulars. Instead therefore of $6325, the worth of the farm should be put at $5222, and instead of $250, the annual rent should be $239. According to my computation, after allowing the defendant $100, and the proper commissions, the sum due the plaintiff is $71,03. Let a decree therefore be entered that the defendant pay the plaintiff $71,03, in twenty days after due service of notice of George v. Van Horn. this decree, and that partition be made and commissioners be appointed, and the costs accruing hereafter, that is, after entering and giving notice of the decree, be defrayed by the parties according to their respective shares, as provided in the statute on partition, (2 R. S. 328, § 72;) that is to say, four-fifths to be paid by the defendant, and one-fifth by the plaintiff. Let the report, thus modified, be confirmed. On appeal, the foregoing decision was affirmed at the general term held at Ithaca, in the 6th district, in September, 1851, by Justices Shankland, Mason and Monson. BROOME GENERAL TERM, October, 1850. Shankland, Gray, Mason, and Monson, Justices. GEORGE VS. VAN HORN. An action on the case can not be maintained by a mother, after the death of her husband, for the seduction of her daughter in his lifetime, where it appears that at the time of the seduction the daughter was over twenty-one years of age, and was residing with her brother, at his residence, and taking charge of his family; although she shortly afterwards returned to her mother's house and remained there till after her confinement, and was taken care of by her. The executors or administrators of a deceased father, or master, can not maintain an action for the seduction of his daughter, or servant, in his lifetime. THIS was an action brought by a mother, for the seduction of her daughter Eliza George, and was tried at the Tompkins court, in September, 1849. The daughter was over thirty years of age at the time of the illicit connection which resulted in the birth of a child, in May, 1849. At the time of the illicit intercourse her father was alive, but he died a few months after, and before the birth of the child. The daughter had generally resided at home, but at the time of the seduction she was residing for a |