$120,000, and divided the proceeds between the persons entitled ■thereto under the . will, including the plaintiff, and took lull releases from each. :
The following is the opinion at special term:
Cullen, J.—The sale of the interest of the testator, Philip W. .Engs, in the business of P. W. Engs & Sons, to the surviving partners, was undoubtedly a sale by the executors to themselves. But even had it been a breach of trust, such sale was not absolutely void, but voidable only at the election of the cestuis que trust, Boerum v. Schenclc, 41 N. Y., 182 , and could be ratified by such cestuis que trust. If made with the previous consent of the beneficiaries, obtained properly and with knowledge of all the facts, the sale would not be a breach of trust nor voidable, but valid ab initio. In this case the adult beneficiaries executed a written consent to the sale, and received knowingly the proceeds thereof.
The only question in the case, therefore, is as to the burden of proof being upon the defendants to prove affimiatively that the contract into which their testators entered with their •cestuis que trust was fair. I assume that as a general rule the burden inequity is upon the trustee to establish that fact. This rule would certainly apply as to the original contract of assent, and probably as to the affirmance. But I think that, from the lapse of time and the acquiescence of the plaintiff, the fairness of the transaction should now be presumed; even if the plaintiff had the right to avoid the sale and settlement, her laches in failing to seek such relief, or take such action for so many years would be a perfect answer to her present claims. Pomeroy’s Eq., § 965. It should; however, go further, and from the plaintiff’s failing to complain during many years, and until after the death of the parties with whom she dealt, the burden should now rest upon her to prove the unfairness of the transaction.
Judgment for defendants, with costs.
Edward B. Merrill for app’lt; Lewis Hurst and Arthur Hurst, for resp’ts.
have no difficulty in upholding the judgment complains was not absolutely void; it operated to pass the title to the property, but it was voidable at the instance of the plaintiff.
Instead of raising objection to the transaction, however, the plaintiff voluntarily received her' portion of the proceeds of the sale and executed a full release to the executors, which must be construed into an acquiescence in the sale and all the proceedings down to that time.
That was in May, 1879, and then the plaintiff remained acquiescent' for thirteen years before she commenced this action.
' Even now the plaintiff offered no evidence to sustain the charges in her complaint of connivance and overreaching, but relied entirely upon the presumption which the law raises against sales by persons occupying a position of trust to themselves, either directly or indirectly.