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Noyes v. Blakeman

5 N.Y. Super. Ct. 531 3 Sandf. 531 Court N.Y. Super. Ct. Decision date 1850-04-20 English

Contents

Majority

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Noyes v. Blakeman and others.

Headnote

Before the revised statutes, the doctrine was established, in this state, as it is in England, that where real or personal property is settled to the separate use of a married woman, her power of disposition and control is subject to no other limitation or restraint, than such as the terms of the settlement directly and plainly impose.
She might, therefore, charge it with the payment of debts, and when with her assent, credit was given to her on the faith of such estate, the creditor acquired a lien which equity would enforce.
Since the revised statutes, where real estate is settled to a married woman’s separate use, neither the estate nor the rents and profits, can be charged for any debt or liability created, or imposed upon it, by her. It is no longer her estate. The wjiole estate is in the trustee, and her interest is inalienable.
Neither can the surplus rents be reached, because, as a married woman, she is not personally liable for debts.
A trust of real estate to receive the rents and profits, and apply them to the separate use of a married woman, is a valid express trust, under the provisions of the revised statutes relative to uses and trusts.
All the necessary expenses of a trustee are to be reimbursed to him out of the estate, although no provision in relation to such expenses be contained in the instrument creating the trust.
Where the trastee of real estate, settled for the separate use of a married woman, necessarily defended suits brought to charge the estate with her insolvent husband’s debts, on the ground of the invalidity of the settlement; it was held that he might reimburse himself for the reasonable expenses incurred, from the funds arising from the trust estate.
Such expenses are, in all cases, a charge on the rents and profits, and when incurred, for the benefit of the remaindermen as well as the life beneficiary, are a charge on the inheritance.
The solicitor and counsel who defended suits of this character, was held entitled, to recover such expenses against the estate which he had defended on the retainer and agreement of the trustee to compensate him out of the rents and profits.
(Before Ddbr, Mason, and Campbell, J.J.)
March 4, 5 ;
April 20, 1850.
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The bill in this cause was filed, September 16,1846, before the vice-chancellor of the first circuit, by Willian Curtis Eoyes against Henry Blakeman and Ann Maria his wife, and Elisha Ruckman, for the purpose of obtaining payment out of the separate estate of Mrs. Blakeman, of the several claims and demands of the complainant for costs and counsel fees incurred by the defendants Mrs. Blakeman and her husband, in the prosecution and defence of suits at law and in chancery, relating, as alleged, to the separate estate of Mrs. Blakeman, and for her particular use and benefit. The bill was taken as confessed against Henry Blakeman. Mrs. Blakeman, by leave of the court, filed her separate answer to the bill. Ruckman also appeared and filed his answer. Replications were filed by the complainant, to both the answers; and proofs were taken by both parties entitled.
The cause was argued at the special term of the supreme court, before Edmonds, J., who, in July, 1849, made a decree in favor of the plaintiff for his whole claim, chargeable on the separate estate of Mrs. Blakeman. An order for a re-hearing by way of an appeal, was made by the general term of the supreme court; after which the cause was transferred to this court.'—The facts appearing by the pleadings and proofs, sg far as it is needful to state them to understand the judgment of the court, were these:—At the time of the marriage of Blakeman and his wife, the latter was an infant, and afterwards, while under age, became entitled to certain real estate in fee as heir of her father, W. Smith. On the 7th of October, 1842, she then having attained her full age, a deed of settlement was executed by and between Blakeman and wife and Henry F. Belden, by which the two former conveyed the real estate to Belden in trust for the following purposes as therein expressed, viz:
“ To and for the several uses, intents and purposes, and upon the trusts hereinafter mentioned and expressed concerning the same: that is to say, in trust, in the first place, to pay out of the rents, income and profits of the said premises, the interest accruing and to accrue upon the aforesaid mortgages and other incumbrances, in the next place to pay thereout all necessary taxes and assessments upon the said premises, and in the next
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place to pay thereout all, the necessary expense incurred in the needful repairs and insurance of the buildings erected on the said premises, and after the payment of the said interest and assessments, and expenses thereto, to pay the remainder of the said rents, income, profits and proceeds, to the said Ann Maria, upon her own separate receipt, notwithstanding her coverture, to the intent and purpose that the same or any part thereof may not be at the disposal of, or subject to the control, debts, liabilities or engagements of the said Henry Blakeman, or of any future husband she may have, but at her own sole and separate use and disposal, and upon this further trust upon the decease of the said Maria during her coverture with the said Henry Blakeman, or any other future husband she may marry, to appropriate the said proceeds (after deducting the outgoings aforesaid,) and to apply and dispose of the same in such manner as the said Ann Maria shall, by her last will and testament, duly executed, direct and appoint, and in default of such appointment, then to apply the said proceeds towards the maintenance and education of the child or children of them, the said Henry and Ann Maria, until they shall arrive at age, or if females, be married, if any such children then be living at her decease, and if no child or children shall be then living, then to pay the same to the said Henry Blakeman during his life; and it is hereby declared and agreed by and between all the said parties to these presents, that the said Ann Maria shall have power during her coverture with the said Henry Blake-man, or with any other future husband she may marry, to devise the said pieces, parcels or lots of ground and premises, by her last will and testament, in the same manner as though she were a feme sole and unmarried, and the said party hereto of the second part is hereby empowered to use all necessary ways and means for the recovery of the rents and profits of the said premises, and to reimburse himself all necessary expense^ in the execution of the trust hereby reposed in him, and it is hereby further declared and agreed, that upon the death of the said Henry F. Belden, party hereto of the second part, if the same should happen before the decease of the said Ann Maria, she, the said Ann Maria, shall be, and is hereby empowered to
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appoint one or more trustees in the place and stead of the said Henry E. Belden, party hereto of the second part, and also shall be, and is hereby empowered to appoint any new trustees in the place and stead of those, at any time so to be appointed, such newly appointed trustees to be invested with the same powers, and to hold the same premises upon the same trust as hereinbefore set forth.’*
In April, 1845, the defendant, Ruckman, by an order of the court of chancery, was substituted as trustee for Mrs. Blakeman, under the trust settlement, in the plade of Belden.
Blakeman, at the time of the settlement, was in embarrassed circumstances, and soon after became insolvent. In December,
1843, he was discharged from his debts, under the bankrupt act of Congress. The complainant’s professional services commenced in the winter of 1842-3, and continued till the fall of 1844, and were briefly as follows:
1. Counsel fee in a suit in the marine court against Blakeman, tried by the complainant’s assistant. 2. Taxed costs in a suit by Bogardus, administratrix, &c., in the common pleas, against Blakeman and wife, discontinued after a demurrer to the declaration. 3. Taxed costs and counsel fee in a suit in chancery by the same administratrix, against Blakeman and wife, brought in April, 1843, to subject the trust estate to the payment of an old debt of Blakeman’s. In this suit, separate answers were put in, replications filed, and proofs were taken. Mrs. Blakeman understood that the complainant, Mr. Hoyes, was looking to her separate estate for his remuneration, and assented to it. After his bankrupt discharge, Blakeman filed a cross bill, setting it up. Proceedings were then suspended in the Bogardus suits. 4. Taxed costs and counsel fee in a suit in chancery, brought in August, 1843, by John H. Williams against Blakeman and wife, Belden the trustee, and T. Morrell, a mortgagee of the trust property; the object of which was to subject the trust estate to an old debt of Blakeman’s. Mr. Hoyes defended this suit, at the request of both Blakeman and Belden. It was severely litigated until after Blakeman’s discharge in bankruptcy. 5. Then the general assignee in bankruptcy, Mr. Waddell, prosecuting in behalf of Williams, filed a bill in equity, in April,
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1844, in the circuit court of the United States, for the southern district of New York, against Blakeman and wife, Belden and Morrell; claiming that the trust deed was invalid as against Blakeman’s creditors, and that he, as assignee, was entitled to the property. After some proceedings for a receiver, this suit was settled June 28th, 1844. The costs and counsel fees in this suit were a part of Mr. Noyes’s demand against the trust estate. The suits of Williams and Waddell, were defended by Mr. N. at the request of both Blakeman and Belden, and the latter agreed the expense should be paid from Mrs. B.’s separate estate. 6. Mr. Noyes also conducted the proceedings by which Blakeman obtained his discharge in bankruptcy, and claimed for his costs and a counsel fee in that behalf. In none of the services rendered, did Mr. N. proceed on the responsibility of Blakeman, who was known to be destitute of property.
The costs were regularly taxed, and a bill rendered to the trustee. Some efforts were made to bring about an adjustment, which were fruitless, and the trustee paying no part of the clainq this suit was commenced.
0. Tracy, for the complainant.
1. The plaintiff’s right to recover is sustained by the following propositions of fact.
The services for which payment is sought were rendered in behalf of Mrs. Blakeman’s separate estate, and were indispensably necessary for its preservation.
They were also useful, and effectually protected such estate against the attacks then making against it. They were rendered on her request, and under her constant oversight and direction.
She promised that they should be paid out of her separate estate.
The services were rendered and the promises made, with the knowledge, sanction, and assent of the trustee for the time being. The separate estate was relied on for payment- by the plaintiff, and the whole amount of the claim was incurred exclusively on the faith of the separate estate alone.
The bills of costs were duly rendered, and were taxed on aotice; and the income of the estate is ample to provide for the
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payment of the sum due to the plaintiff, without embarrassing the trust.
H. The plaintiff is equitably entitled to payment out of the separate estate of Mrs. Blakeman, in the hands of the defendant Euckman, her trustee.
I. As to her separate estate, she is to be regarded as a feme sole, having full power to contract liabilities, and create liens and charges affecting such estate. (3 J. C. R. 77, 120, Jaques v. Meth. Episcopal Church ; 17 J. R. 548, S. C.; 2 Story’s Eq. Jur. § 1398-1400 and note; McQueen on Husb. and Wife, 294; 13 London Jurist, 739, Gaston v. Frankham; 7 Paige, 9, North Amer. Coal Co. v. Dyett ; 20 Wend. 570 , S. C.; 4 Barb. S. C. R. 407, Firemen's Ins. Co. of Albany v. Bay ; Clancy’s Rights of Women, 343, 4; 9 Vesey, 486, Jones v. Harris; 14 do. 542, Essex v. Atkins ; 7 B. Monroe, 293, Jarman v. Wilkerson.)
There is no clause in the deed, nor anything in the nature of the trust, depriving her of the right of anticipating the income, which properly attaches to a wife’s separate estate. (Hill on Trustees, 422-4; 1 Jarman on Wills, 830, 1; 2 Roper on Husb. and Wife, 239; 9 London Jurist, 82, Harrop v. Howard; 3 Maddock’s Ch. R. 387, Stewart v. Kirkwall; Id. 94, Greatly v. Noble: 4 Simons, 82, Murray v. Barlee.)
The trust deed being intended to secure the property to her separate disposal as to both income and principal, should be construed liberally in favor of her free and ample control over her own estate. (Willis on Trustees, 128-130; 2 Barb. S. C. R. 493, Stuart v. Kissam.)
The right of a married woman to anticipate her income, in order to preserve her estate by a necessary legal defence, is indispensable to her safety; and a charge made for such a purpose should be sustained and favored by the court. (3 M. & K. 209, 221, 226, Murray v. Barlee ; S. C. 4 Sim. 82; Willis on Trustees, 130.)
2. The statute concerning alienations by cestui que trust, does not affect the plaintiff’s claim. (1 R. S. 729, § 60; Id. 730, § 63; Id. 729, § 57; 1 Barb, C. R. 34, L'Amoureux v. Van Rensselaer; 3 Sandf. C. R. 104, Rogers v. Ludlow; 14 Wend.
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265 , Coster v. Lorillard; 4 Barb. S. C. R. 407, Firemen's Ins. Co. v. Bay; 2 R. S. 174, § 38; 5 Paige, 586, Hallett v. Thompson; Willis on Tr. 128-130; 1 Hill’s (So. Car.) 228, Magwood v. Johnson; 1 McCord, 267 , Montgomery v. Eveleigh; 4 Dess. 591, James v. Magrant; Id. 19, Carter v. Eveleigh; Amb. 103, Barnessy v. Powell; 7 Paige, 9; 20 Wend. 570 ; Lewis on Trustees, 453.)
3. The trust estate also became liable through the trustee, Belden, who knew, sanctioned, and assented to the litigation in defence of the property, and took no other steps to preserve the estate when it was in peril, but left the care of its defence with Mr. and Mrs. Blakeman. (2 Greenl. 373, Upton v. Gray; 9 Paige, 9.)
4. The plaintiff having relied wholly upon the wife’s separate estate for compensation, while rendering it essential services, is entitled to payment out of such estate for services performed in faith of such payment. (4 Barb. S. C. R. 415; 3 Iredell Eq. R. 237, Frazier v. Brownlow; 9 Ves. 486, Jones v. Harris.)
G. Judson and F. Samdford, for the defendants.
I. The evidence given in the cause does not establish any agreement on the part of Mrs. Blakeman, by which her separate estate can be made, in equity, chargeable with the claim of the plaintiff, or any part thereof. There is no evidence in the case to create a charge on her separate estate, either as an appointment, or as a disposition of it by a contract in the nature of an appointment.
II. ' Under the deed of trust executed by Blakeman and wife, to Belden, it was not competent for Mrs. Blakeman, either expressly or by implication, to create any charge on the property. She had no power to dispose of any part of the trust estate, ndr to make any appointment in relation thereto.
1. By the deed referred to, a valid express trust is created. (IR. S. 728, §55, sub. 3.)
2. Such express trust vested the whole estate in the trustee in law and in equity, subject only to the execution of the trust, and
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Mrs. Blakeman has no estate or interest in the land. (1 R. S. 729, § 60.)
3. The interest of Mrs. Blakeman in the trust for the receipt of the rents and profits of lands was not assignable; but it is declared.by statute that she cannot m mvy ma/rm&r dispose of suoJi interest. (1 R. S. 730, § 63.)
4. The trust being expressed in the deed creating the estate, it was not lawful for Belden as trustee, nor for Ruckman as his successor, to make any conveyance, or to do any other act in relation to the trust estate, in execution of any such alleged agreement on the part of Mrs. Blakeman, because it would have been in contravention of the trust. (1 R. S. 730, § 65.)
5. By law, only the surplus rents and profits, beyond the sum that might be necessary for the support of Mrs. Blakeman, could be made liable in equity to the claims of her creditors. The bill did not make any case within the provisions of this law, and there is no such surplus. (1 R. S. 729, § 57.)
6. The bill does not allege that any rents were due and unpaid to Mrs. Blakeman in the hands of her trustee, at the time of her alleged agreements, if they be proven to have been made by her. The interest of Mrs. Blakeman in the rents thereafter to accrue, and be received, was future and contingent. Until the rent accrued, the person who would be entitled to receive it under the trust deed remains uncertain. (1 R. S. 725, § 36.)
HI. These objections appearing upon the face of the bill of complaint, the court cannot make the decree prayed for without, annulling the statute. The English cases, and the cases which arose in our state before the present law in relation to uses and trusts, have no application. (1 Barb. Ch. R. 34, L'Amoureux v. Van Rensselaer.)
The decree made at the special term should, therefore, be reversed, and the bill of complaint be dismissed with costs.

The object of this bill is to charge the separate estate of Mrs. Blakeman, a married woman, with the payment of various sums of money, that are alleged to- be due to the plaintiff, for his disbursements and services as her

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solicitor and counsel, in several suits in relation to her estate, in which she employed him. A decree in his favor has been rendered at a special term of the supreme court, for the whole amount of his claims, and it is upon an appeal from this decree that the cause is now before us.

We are satisfied that all the material allegations in the bill in relation to the employment of the plaintiff, and the nature and value of his services, are sufficiently established by the proofs, and consequently that we have only to consider the question of law, whether he is entitled, in whole or in part, to the relief that has been decreed to him.

The bill avers that all the suits, in which the plaintiff was employed, had a direct relation to the estate held in trust for Mrs. Blakeman, and that when he was employed, it was expressly understood and agreed, that he should be paid for his services, out of this estate, and that it was upon the faith of this agreement that his services were rendered. The bill also avers, that in two of these suits, those which are last mentioned in the bill, the assent of Mrs. Blakeman’s trustee to the employment of the plaintiff, upon the terms that have been stated, was expressly given, but there is no such averment in relation to the remaining suits, nor does it appear from the evidence that such was the fact.

In order to determine whether a proper decree has been made, we must first inquire into the nature of the estate or interest of Mrs. Blakeman, in the property which is sought to be charged, and which the bill and even the decree describes, as her separate estate. If this description is true, the propriety of the decree in its present form, is not to be questioned, for no doctrine is more •fully and clearly established, than that a feme covert in regard to her separate estate is considered, in equity, in all respects, as a feme sole.

The rule was first laid down in these "broad terms, by Lord Hardwicke, in Peacock v. Monk, (2 Ves. Sen. 190,) and for a time, courts of equity seem to have hesitated as to its adoption, and were disposed to qualify and restrict its application. No traces, however, of such hesitation and doubt, are to be found in the more recent decisions. But on the contrary, they have

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adopted and carried out the rule in the fullest sense that its terms import. Consequently, it is now certain that where real or personal property is settled to the separate use of a married woman, her power of disposition and control is subject to no other limitation or restraint, than such as the terms and the settlement directly and plainly impose. Where no such limitation exists, the power to sell and convey her separate property, necessarily includes the power to charge it with the payment of debts, and in all cases, where with her knowledge and assent, credit is given to her upon the faith of her separate estate, the creditor acquires a lien which a court of equity will enforce. (Hume v. Tenant, 1 Bro. Ch. Ca. 16; S. C. 2 Dickens 560; Fettiplace v. Gorges, 1 Ves. Jr. 46; 3 Br. Ch. Ca. 8; Essex v. Atkins, 14 Ves. 542; Heathy v. Thomas, 15 Ves. 596; Murray v. Barlee, 3 M. & K. 220; Owen v. Dickinson, 1 Cr. & Ph. 53; Tullett v. Armstrong, 1 Beav. 1.)

In some of our sister states, a rule exactly the converse of that which prevails in England, has been adopted, but our own decisions have followed substantially the English doctrine. (Jaques v. Meth. Epis. Church, 17 John. 548 ; North American Coal Co. v. Dyett, 7 Paige 9 ; S. C. 20 Wend. 570 ; Gardner v. Gardner, 7 Paige 112 ; Cumming v. Williamson, 1 Sand. Ch. R. 17; Curtis v. Engel, 2 Ibid. 287.)

Had the trust deed, which is in evidence in this case, been executed before the revised statutes were in force, this equitable doctrine would have been applicable in its whole extent, and as the terms of the deed impose no restraint on Mrs. Blakeman’s power of disposition, we could not have hesitated to affirm the decree exactly as it stands. Upon this supposition, Mrs. Blake-man would have been an equitable tenant for life with an unlimited power to dispose of and charge her estate, and the facts set forth in the bill and substantiated by the proofs, would have given to the plaintiff an unquestionable title to the relief that he has obtained. But the deed was not executed until 1842, and we agree with the learned counsel for the defendant, that this circumstance has rendered the authorities upon which the plaintiff’s counsel mainly relied, wholly inapplicable. It is in the revised statutes that we must now seek the rules, that in con-

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staling the trust deed we are hound to follow. And it is by a reference to their provisions, that not only the validity of the trust, but the nature and extent of Mrs. Blakeman’s interest in the lands which the trust embraces, must be determined. Applying this test, it is impossible to say, that these lands were her separate estate, for this ms so far from being true, that in reality she had no estate or interest in them at all; the whole, legal and equitable, by the express words of the statute, being vested in her trustee. (1 Rev. Stat. 727, § 60.)

The trust which the deed creates, is to receive the rents and profits of the lands, and pay them over to Mrs. Blakeman, to her separate use during her life, and it is therefore valid, according to a recent decision of the court of appeals, which has fortunately settled a long disputed and very doubtful question, (Leggett v. Perkins 2 Comstock’s R. 297,) as an express trust under the third subdivision of section 55, in the article of uses and trusts. (1 R. S. 728.)

By a subsequent section in the same article, it is declared, that no person interested in such a trust can assign, or in any manner dispose of his interest, and we entirely assent to the opinion of Chancellor Walworth, in L'Amoureux v. Van Rens selaer, (1 Barb. Ch. R. 36,) that the necessary effect of this prohibition, is to prevent the beneficiary from pledging the rents and profits by anticipation, and from creating any lien thereon, in law or in equity, by any contract means or process whatever. The words of the statute operate as an absolute restraint of alienation in any form. A charge upon lands, or upon the rents and profits, is a contingent disposition of them, partial or entire, according to the amount of the charge, and it is obvious that the amount of the charge, or of successive charges, may be such as to absorb, when enforced, the whole value of the lands, or the whole rents and profits during the continuance of the trust.

It follows from these observations, that the claims of the plaintiff, so far as they rest upon the personal agreement of Mrs. B., her promise, that he shoidd be paid out of the rents and profits, cannot be sustained; she had no right to make the promise, nor have we the power to compel its execution. These items, therefore, in his account which embraced the costs and fees for his profes

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sional services in the three suits which are first mentioned in the bill, must be rejected. The employment of the plaintiff in these suits, was the act of Mrs. Blakeman and her husband, without the co-operation of the trustee; it was with them, alone, that the special agreement for his compensation was made, and it is upon the validity of this, agreement, as creating, in connexion with the nature of his services, an equitable lien, that his claim to the aid of the court is exclusively founded. It was, however, urged upon the argument, that if the existence of a positive lien, as resulting from the agreement of the parties, must be denied, yet the plaintiff, as a creditor, is entitled to the satisfaction of his debt, from the surplus rents and profits, under section 57, in the article of uses and trusts. (1 Rev. Stat. 729.) But this section is limited by its terms to demands, for which the debtor is personally liable, and which are capable of being enforced by an execution at law. A married woman, who is incapable during her coverture of contracting debts for which she is personally liable, is not within the purview of the section, and can have no creditor entitled to the remedy which it gives. This construction was given to the statute by the chancellor, in L'Amoureux v. Van Rensselaer, and it has been followed by Vice-Chancellor Sand-ford, Rogers v. Ludlow, (3 Sand. C. R. 104.) It is alleged in the bill, that the suits in which the plaintiff was retained by Mrs. B. and her husband, related to the trust estate, and that it was for the purpose of protecting the estate against the claims of the creditors of the husband, that his services were required; in other words, that his services were rendered for th§ benefit of the estate; but although this fact, without any express agreement, may be sufficient to sustain a charge upon rents and profits, when a married woman has a separate estate, and an unrestricted power of disposal, yet we apprehend, that when she has no such estate and no such power, the assent of her trustee is indispensable. Even in England, we infer from the cases, that this assent is necessary, where a feme covert, having a separate estate, is restrained from alienation.

Although, for the reasons that have been given, the larger portion of the claims of the plaintiff must be disallowed, it by no means follows, that the decree which he has obtained is to be

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wholly reversed. On the contrary, as to the residue of his claims, we have no difficulty in sustaining it. In the other suits that are mentioned in the bill, he was employed by the trustee as well as by Blalceman and his wife, and it is expressly alleged, and we think sufficiently proved, that the trastee was a party to the agreement for his compensation. The object of the plaintiffs in, these suits, was to charge the debts of the insolvent husband upon the trust estate; in other words, to set aside the trust deed, which was a post-nuptial settlement, as fraudulent and void. The defence of those suits was, therefore, a duty, which the law imposed upon the trustee, and for all reasonable expenses incurred by him in the discharge of this necessary duty, he was entitled to reimburse himself from the funds in hand, and from such as he might thereafter receive from the trust estate. The law is most clearly settled, and it would be a reproach to its principles or its administration, were it otherwise, that all the necessary expenses of a trustee, that is, all expenses of every kind, which are reasonably and in good faith incurred by him, for the defence, protection, or reparation of the estate, are to be treated in equity as a charge, in all cases, upon the rents and profits, and when incurred for the benefit of the whole estate, that is, for the benefit of those entitled in remainder as well as the immediate cestui que trust, upon the inheritance and fee. (Hide v. Haywood, 2 Atkyns 126; Balsh, v. Hiqhsham, 1P. Will. 455; Caffrey v. Darby, 6 Ves. 499; Worrall v. Hartford, 8 Ves. 8; Dawson v. Clarke, 18 Ves. 254; Wilkinson v. Wilkinson, 2 Sim. & St. 251.) Pior ° can it be doubted, that where the trustee is not willing to render himself personally liable, he may, by an express agreement, transfer his own equitable lien to a third party, by whom the necessary funds are advanced, or the services from which compensation is due are rendered. (Oases ut supra)

That such are the general rules of law, was not denied by the learned counsel for the defendant; but he strenuously insisted that where a trust is created under the revised statutes, in relation to the receipt and application of rents and profits, the trustee has no .claim to be reimbursed for any expenses, however necessary, that are not expressly authorized by the terms of the trust, nor can it be denied that there are some expressions in the opinion

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of the chancellor, in L'Amoureux v. Van Rensselear, which, detached from the context, may seem to bear this interpretation. But it is impossible that such could have been the meaning of the chancellor. The doctrine in equity is so unquestionable and familiar, that it may be regarded as elementary, that all the necessary expenses of a trustee are to be reimbursed to him out of the estate, although no provision whatever in relation to such expenses is contained in the deed or other instrument, by which the trust is created. In every such instrument, there is an implied direction that all such expenses as the preservation or protection of the estate may require, shall be incurred, and an implied stipulation or promise, that when incurred, they shall be a charge upon the estate. ( Worrall v. Hartford, 8 Ves. 4; Lewin on Trusts 455.) It is certain that no provision is to be found in the revised statutes, by which the rights and duties of trustees, in relation to expenses incurred by them in the execution of their trust, are in any degree varied or affected, and we shall not dwell on the injustice and absurdity of a doctrine, that would enable a trustee, without a violation of his trust, to surrender the possession of the trust property, to any person who upon any grounds might choose to claim it.

The agreement of the trustee, in the present case, that the plaintiff should be compensated for Ms services, out of the rents and profits of the estate, was reasonable and just, and must be carried into effect. The decree, however, must be so far altered, as to limit the recovery of the plaintiff to the sum with interest, that the agreement of the trustee embraced; and thus modified, it is affirmed, but without costs to either party on this appeal.

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