Lent v. Howard, 89 N. Y. 176-178; Bogert v. Hertell, 4 Hill, 492, 503; Meakings v. Cromwell, 5 N. Y. 142.

no special equities between remaindermen, the life tenant must keep down the interest and the remainder pay off the principal.

Perry, Trusts, § 570; Greville v. Browne, 7 H. L. Cas. 689; Reynolds v. Reynolds, 16 N. Y. 259; Erroin v. Loper, 43 N. Ÿ. 525, 526.

Although not trustees of the proceeds in a strict sense, the terms of the power coupled with the law imposed the same duty as if they

were.

Skinner v. Quin and Ervin v. Loper, 43 N. Y. 99, 525; Hepburn v. Hepburn, 2 Bradf. 75; Stilwell v. Doughty, 2 Bradf. 311, 317, 318; Osgood v. Franklin, 2 Johns. Ch. 22.

Gunning v. Carman, 3 Redf. 70; Stilwell v. Doughty, 2 Bradf. 311, 317-318; Williams v. Cox. 3 Edw. Ch. 178; Cairns v. Chabert, 3 Edw. Ch. 312; Fleet v. Dorland, 11 How. Pr. 491; Re Estate of Miller, 1 Tucker, 346.

The statute provides for such case that in event that either fail to contribute, a bill may be brought for a sale of the lands to satisfy the incumbrance.

R. S. part 1, 6th ed. chap. 13, title 3, §§ 149

158.

Uniformly in the United States, where investments upon real estate security are sanctioned, the application of some of the corpus of the personal estate to the restoration or protection of the real estate in remainder, has been sanctioned as a proper investment, unless it appears that a discretion has been improperly exercised; and executors or trustees are presumed to have acted in good faith, unless the contrary is shown.

Perry, Trusts, § 458; Sohier v. Eldredge, 103 Mass. 345-354; Parsons v. Winslow, 16 Mass. 361; Watts v. Howard, 7 Met. 478; Gambril v. Gambril, 3 Md. Ch. 259 and cases cited; Kearney v. Kearney, 17 N. J. Eq. 70; Lent v. How ard, 89 N. Y. 178, 179; Davis v. Stover, 58 N. Y. 474; Young v. Brush, 28 N. Y. 671, 674; Osgood v. Franklin, 2 Johns. Ch. 18-29; King v. Talbot, 40 N. Y. 83, 87; Sutphen v. Ellis, 35 Mich. 446.

Although it is held that they cannot bind the estate upon executory contracts of their own, although beneficial to the estate, yet they can make such contracts an express charge upon the estate when within their discretion and they appear to be for its benefit.

New v. Nicoll, 73 N. Y. 129; Noyes v. Blake man, 6 N. Y. 567, 579-580; Randall v. Dusenbury, 39 Superior Ct. (7 Jones & S.) 174; 63 N. Y. 645.

Where there are no funds in hand, they can make a charge that will bind future funds or income.

It is a rule of equity that trustees may safely do what the court would direct them to do; e. g., where great loss might occur to estates unless they exercised rights of absolute ownership.

Perry, Trusts, § 476; Inwood v. Twyne, 2 Eden, 152; Caldecott v. Brown, 2 Hare, 146.

In Moseley v. Marshall, 22 N. Y. 202, the rule is stated to be that where an existing incumbrance binds the whole estate and there are N. Y. C. R., V. VII.

being entitled to the interest if the fund had been otherwise invested), by the paying off of the assessments, he got the use of the premises free from the liens as an equivalent for his interest.

House v. House, 10 Paige, 158; Stilwell v. Doughty, 2 Bradf. 311-317, 318.

The bill, to avoid a sale, such as the one to Evans, must be brought within a reasonable time.

The power to sell, and the control of the question of the propriety of the sale to Evans, was vested in the executors; and the discretion was properly exercised, and a sale to him was as valid as to another, unless there are facts to show that he owed some duty to the cestui que trust inconsistent with his making a purchase. It is mainly a question of fact. The executors had their reasons for desiring to sell, which they deemed for the best interests of the estate as a whole; and if they could secure as large or a larger price by a sale to him than to another we can imagine no reason, resting upon any duty owing by him toward the remaindermen, that would prejudice his right to purchase.

Howard v. Ducane, 1 Turn. & Russ. 81; Dicconson v. Talbot, L. R. 6 Ch. App. 32; Lloyd v. Johnes, 9 Ves. 51; Ten Eyck v. Craig, 62 N.Y. 419-427; Nellis v. Lathrop, 22 Wend. 121; McGuire v. McGowen, 4 Desaus. (S. C.) 486; Sugden, Powers, chap. 19, § 1 subd. 79, 80, pp. 867, 868; Sugden, Vendors, chap. 20, § 2, subd. 15, p. 692.

The application of the proceeds to pay off the assessments, and to pay Evans' bill for improvements, did not render the sale voidable.

Davis v. Stover, 58 N. Y. 474; Lent v. Howard, 89 N. Y. 178, 179; Dicconson v. Talbot, L. R. 6 Ch. App. 37.

If the sale is to be avoided, defendant should be allowed the amount of the purchase money, and the costs of the improvements put upon the two lots, with interest from the date of Mrs. Evans' death, May 16, 1878, and the property should be put up for resale.

2 Sugden, Vendors, chap. 20, § 2, subd. 23, 909

The allowance to the purchaser in this class of cases of all moneys expended upon the purchase and for permanent improvements seems to be placed upon two principles or doctrines of equity, to wit:

1. That a purchaser who buys and puts improvements upon the land upon the supposition that he acquires a good title, is to be protected to the extent of his outlay; as in Putnam v. Ritchie, 6 Paige, 390, 402-406; Mickles v. Dillaye, 17 N. Y. 80; Benedict v. Gilman, 4 Paige, 58; and Bright v. Boyd, 1 Story, 478.

2. On the broader principle, that he who comes into court and asks equity must do equity, and must restore what he has received; as in Madison Ave. Bap. Ch. v. Oliver St. Bap. Ch. 73 N. Y. 82, 98; Ford v. Knapp, 3 Cent. Rep. 411, 102 N. Y. 137-143, and cases cited. Mr. William G. Cooke with Mr. William C. Wallace, for respondents:

Under the will the widow took a life estate.

Jennings v. Conboy, 73 N. Y. 236-237. The devise to the children was of a vested remainder in fee, limited upon the particular estate in the widow, and subject only to the proper execution of the power of sale conferred upon the executors.

Morse v. Morse, 85 N. Y. 58; Manice v. Manice, 43 N. Y. 304.

The fact that after a sale of the land the executors are to have the handling and investment of the proceeds does not make the authority conferred upon them any the less a naked power.

Crittenden v. Fairchild, 41 N. Y. 289; Hetzel v. Barber, 69 N. Y. 1; Prentice v. Janssen, 79 N. Y. 479.

In the absence of an express declaration to that effect, an intent to create an express trust will not be presumed, where the whole design of the instrument can be accomplished under a power conferred.

Heermans v. Robertson, 64 N. Y. 332. The conveyance by the executors to Swackhamer was not a lawful execution of the power of sale. A power of sale, contained in a will, can be exercised only in the manner and for the precise purpose contemplated by the tes

tator.

Allen v. De Witt, 3 N. Y. 276; Roome v. Philips, 27 N. Y. 357; Russell v. Russell, 36 N. Y. 581; Hetzel v. Barber, 69 N. Y. 1.

No question can arise as to the rights of bona fide purchasers. The defendant Evans devised the whole scheme, in pursuance of which the property was conveyed to Swackhamer and finally to him.

As to the defendants Scofield, there is no pretense that they paid a dollar for the property conveyed to them; it is admitted that the conveyances were intended as gifts.

Evans married the widow in 1841. Her life estate thereupon vested in him by the common law.

2 Kent, Com. 134; Wood v. Wood, 83 N. Y. 575.

This right was not affected by the Married Woman's Act of 1848.

Westervelt v. Gregg, 12 N. Y. 202; Ryder v. Hulse, 24 N. Y. 372; Wood v. Wood, 83 N. Y. 579.

Upon him, then, rested all the obligations to the remaindermen, which the law imposes upon life tenants:

To preserve the estate from waste. 4 Kent, Com. 76, 77, 81.

To pay all taxes laid upon the land during the tenancy.

Cairns v. Chabert, 3 Edw. Ch. 312; De Witt v. Cooper, 18 Hun, 67.

To keep down the interest on incumbrances. 1 Washb. Real Prop. 123, 4th ed. As life tenant he cannot charge the remainder with the cost of his improvements. Id.

But he claims to occupy the position of one who has purchased, paid for and improved land, supposing that he had obtained a good title.

It is not pretended that he has any absolute legal right to reimbursement or a lien; but that a court of equity will not permit plaintiffs to take the land with the improvements, and suffer an innocent defendant to lose all benefit of his expenditures upon it.

There is no inflexible, or even well defined rule, upon which the courts proceed in determining whether or not a party shall be so reimbursed, but each case will turn upon its own natural right and justice.

Madison Ave. Bap. Ch. v. Oliver St. Bap.Ch. 73 N. Y. 96.

Two things, however, must always exist before the court will entertain such a claim:

1. The party must have honestly believed that he had a good title.

Moore v. Cable, 1 Johns. Ch. 387; Woodhull v. Rosenthal, 61 N. Y. 382, 397.

2. It must, of course, appear that otherwise the party will be injured by having made the improvements.

The defendant Evans was not a bona fide purchaser; he had actual notice and positive knowledge that the sale to him was void. He was familiar with the will, in which it was written, as plain as words can speak, that a sale should be made only for the purpose of investment. He knew that one object of selling was to pay him for having made improvements upon the estate, of which he was to have the benefit as long as he lived.

But he will sustain no damage by being denied compensation. It was plainly to the interest of the life tenant to make the improvements and he has been more than reimbursed.

The purchase price of the land was $2,000, the cost of the building $6,000; in all $8,000. According to his own testimony he must have received at least $30,000 from the rents of these houses.

court:

Evans advanced some money to pay them; but the estate was still unable to meet the other burdens upon the property. Under the circumstances the defendant Evans, under an agreement with one Swackhamer that he would repurchase the property and repay him its cost and such money as he should expend upon it with a bonus of $500 for his risk and trouble, induced Swackhamer to enter into a contract of purchase of the two lots on South Second Street, with the executors, for the price of $2,000.

In December, 1841, the widow intermarried with the defendant Evans and lived with him as his wife until the year 1878, a period of thirtyseven years and nearly twenty years after all of the children had arrived at maturity.

It is conceded that by the will the widow took a life estate in the property of her husband, and that upon her marriage with Evans he became entitled to the enjoyment of her interest therein, and that the four children took a vested estate in remainder in such property. Between the years 1841 and 1850 the defendant Evans made considerable improvements upon the property on South First Street, and rendered some of it productive which before was a burden and expense to the estate. For the purpose partly of paying the liability of the estate to Evans for these improvements and partly to raise money to meet anticipated assessments upon the property the executors, in 1850, sold and conveyed to Evans for the agreed price of $1,000 the two vacant lots on South Second Street. Of this sum $350 was applied as a payment to Evans for the expenses incurred by him, and the balance of $650 was secured by a mortgage upon the property, given by Evans to the executors. The price paid was a fair consideration for the land, and all parties then supposed that Evans acquired a valid title under the power of sale contained in the will. Subsequently, however, upon attempting to raise money upon the lots for building purposes, Evans was advised that by reason of his relationship with one of the grantors, his title was defective; and thereupon he consented to institute an action to have such title declared void and to reinstate the power of sale in the executors. Such proceedings were thereupon had in the supreme court that judgment was rendered declaring the conveyance from the executors to Evans null and void, and reinstating them, with the interest attempted to be conveyed.

Between 1850 and 1854 heavy assessments were levied upon the property of the estate for municipal improvements, and the executors had no means to pay them. These assessments were mainly levied upon the lots on South

It does not appear that the executors had any knowledge of the agreement between Evans and Swackhamer, or that any of the parties had any doubt but that Swackhamer acquired a valid title to the property by the conveyance. Upon receiving his deed Swackhamer executed a mortgage upon the property to third parties for the sum of $4,500, which sum was wholly expended in erecting three substantial brick dwellings upon the two lots. In 1856, in accordance with his agreement with Evans, Swackhamer conveyed the property to him, receiving in payment therefor the sum of upwards of $7,000. Immediately upon receiving his deed Evans caused it to be placed upon record, and from that time forward claimed to be the absolute owner of the property.

Since Evans' occupation of the lots he has continued to make additions to and improvements upon them, the value of which, including the original cost of the houses, as found by the trial court, exceeded $9,000 at the time of the trial. In 1879 Evans conveyed to each of the two other defendants Catharine J. Scofield and Jessie E. Scofield, one of the houses erected on the two lots on South Second Street, as a gift, out of consideration of love and affection for them as his daughters.

This action was brought by two of the remaining children of Thomas, the other one refusing to join therein as a plaintiff, in April, 1881, for the purpose of vacating and annulling the deed given by the executors to Swackhamer, and all subsequent conveyances of the property, and having it adjudged that the two lots with their improvements were the property of the plaintiffs, and requiring the defendants to release and convey the property to them, and that the defendant, Thomas J. Evans, render an account of all of his transactions with the estate of Thomas Thomas, and be decreed to pay to the plaintiffs such sums as might be found due upon such accounting. The right to relief was based exclusively upon the allegation in the complaint that the defendant Evans obtained title to the property from the executors "for the purpose of enabling the executors more conveniently to manage the said estate through the defendant, Thomas J. Evans, and with a view to increase the revenue for the said real estate and to put the title thereof in the

said Thomas J. Evans as trustee for the said Catharine Evans and the children of the said Thomas Thomas, deceased."

Upon the trial no proof was offered by the plaintiffs of the existence of the trust and agreement alleged in the complaint; but the action was sustained, upon the ground that the conveyance by which the land was transferred from the executors of Thomas to Swackhamer was not a valid exercise of the power of sale given to them by the will of Thomas, and constituted a cloud upon the title of the true owners which should be removed. The decree also denied to the defendant the right to compensa tion for the improvements made to the property by him. The ground upon which this conclusion was reached is stated to be that Evans was not a bona fide purchaser of the premises. This conclusion was based upon the finding of law made by the trial court: that neither Evans nor the other defendants were bona file purchasers of the land.

It is not entirely clear what the trial court meant by this finding of law; but if it was intended to convey any other idea than that it was simply a legal deduction from the assumed fact that the conveyances to Swackhamer and Evans were void by reason of the alleged invalidity in the execution of the power of sale, it is contrary to the findings of fact made by the court, and is unsupported by any evidence in the case.

It was found by the trial court that from 1856 Evans always claimed to be the absolute owner of the property; and that this claim was known to and acquiesced in by the plaintiffs appears from the allegations of the complaint. It is therein averred that "The plaintiffs have all been for many years of full age, and have not requested the transfer of said title to them because of the positive assurance they all had from the said defendant and from the said testatrix in her lifetime, that the same was held for the estate, and because their mother, the said testatrix, was entitled to the income of the same until her death." This excuse so far as it alleges any assurance from the defendant Evans, or his wife, of the existence of a trust, is not, as we have seen, supported by the evidence.

It also appears that some, if not all, of the surviving children of Thomas, after their majority, had knowledge of the expenditures that the defendant Evans made, not only upon the property in dispute but also upon the other real estate remaining unsold, and so far from making any objection thereto, actually requested them to be made.

A careful perusal of the evidence in the case shows us that Evans, in the right of his wife, came into the possession of the eight lots in 1841; and although both he and the estate were destitute of means to improve it or to pay the taxes or assessments levied thereon, it was so managed as to make it more valuable and productive and to preserve for the remaindermen the greater part of the estate. In the meanwhile he provided a home for the widow and children of Thomas, and educated and supported the children, not only until their majority but some of them until long after that time. Under these circumstances it is not strange that the remaindermen have hesitated so long to as

sert any rights to the two lots in question, and that one of them refused altogether to become a party to the proceeding.

A claim to recover back property which has been fairly sold and paid for at its full value and the consideration of which has accrued to the benefit of the plaintiffs, without offering to render compensation to one who, honestly believinghimself to be its lawful owner, expended large sums in its improvement, and which now constitutes its greatest value, seems to be unjust and inequitable. We are of the opinion that the purchase price originally paid for the land, and the value of the improvements (to the extent thatthey have added to its permanent value) constitute an equitable claim, and that even if the plaintiffs should establish an equitable right to the property, it would not entitle them to judg ment therefor, except upon the condition of refunding to the defendant Evans the amount so expended.

It was found by the trial court that the purchase price was mainly paid in relieving the land from the assessments imposed upon it. These assessments were a charge upon all of the land, and the interest of the remaindermen, as well as that of the life tenant, was liable to be sold therefor. It is provided by statute, in the case of real property in which several persons have successive interests incumbered by taxes and assessments rendering it liable to sale therefor, that upon the application of any of the parties interested the court may order a sale of the fee or a part thereof for the purpose of discharging the liens upon the remainder. Laws 1841, chap. 341; Laws 1855, chap. 357: Jackson v. Babcock, 16 N. Y. 246; Dikeman v. Dikeman, 11 Paige, 484.

Thus the property of the plaintiffs was legally liable for the payment of these assessments. Although the method provided by statute was not pursued, we see no reason why a court of equity, called upon to settle the equitable rights of the parties, should not charge remaindermen with the reimbursement of moneys actually and honestly expended for the benefit of their estate and which they were legally liable to pay.

The general rule applicable to the relation of life tenants and remaindermen does not authorize the former to charge the latter with the cost and expense of permanent improvements put upon the property by him during the life tenancy. Dent v. Dent, 30 Beav. 363; Moore v. Cable, 1 Johns. Ch. 385.

This rule is founded upon principles of justice having reference to the rights and interests of remaindermen, and should not be inconsiderately impaired or evaded.

It is also the general rule that municipal assessments for permanent improvements upon land are apportionable between the life tenant and the remaindermen, according to the circumstances of the case and their respective interests in the property; Stillwell v. Doughty, 3 Bradf. 359; Peck v. Sherwood, 56 N. Y. 615; while the ordinary taxes of government are properly chargeable to the life tenant alone. Deraismes v. Deraismes, 72 N. Y. 154; Cairns v. Chabert, 3 Edw. Ch. 312.

Such are the rules applicable to those rela tions, when they are open and acknowledged and no special circumstances exist authorizing the application of principles of equity to reim