Majority
p. 326Edward Ulrich, Ex’r, Resp’t, v. Charles Ulrich, App’lt. (Supreme Court, General Term, First Department, Filed March 31, 1892.)
Headnote
Trustees—Rents—Agreement as to.A testamentary trustee has no power to make an agreement with one of the cestui que trusts that the rent of premises leased, to him shall he charged to his share in the estate.
Appeal from judgment entered on verdict directed by the court
Nelson Smith, for app’lt; F. W. S. Johnston, for resp’t.
The pleadings in this case show an agreement between the plaintiff and the defendant for the renting of the
p. 327
premises in question at an agreed price. The defendant claims that the plaintiff agreed that the rent should be paid by having the same charged against his share in the estate of which the plaintiff was trustee. This defence the court refused to allow the defendant to prove; and in this we think there was no error. 'The trustee had no power to make an agreement with the defendant that the rent should be paid in the form in which it was claimed by the defendant it was agreed to be paid. The result of legalizing such an agreement would be allowing a trustee to accept payment by charging the debt against a supposititious share or interest in an estate by an heir or devisee. No trustee can deal with a trust fund in that manner, and so far as the contract provided for payment in that form it was null and void, it being beyond the power of the trustee to make any such agreement.
The judgment should be affirmed, with costs.
Van Brunt, P. J., and O’Brien, J., concur.