Opinion of the Court, per EARL, J. could have required him to satisfy both judgments, or have obtained perpetual stay of executions to enforce them. Roach, as above stated, paid $1,300 in satisfaction of the first judgment. He paid that to Croker who had no right as between him and Duckworth to take it or to satisfy the judg ment. Croker acted fraudulently toward Duckworth, and kept the money. Duckworth received no benefit, whatever, from the payment, and now the plaintiffs claim that they must have the same benefit as they would have had if that judgment had been paid in full. It is impossible for us to comprehend upon what principle such a claim can be founded. The $1,300 was paid, as we must assume, in good faith to Croker, without knowledge of Duckworth's rights, and hence he must be bound by it. But how can he be bound for more? Ile received that sum upon his collaterals. It was not paid in satisfaction of his debt against the corporation, but in satisfaction of the judgment upon the collaterals. Suppose he had gone to Roach with his collaterals, and Roach had paid him that sum for the collaterals, or in satisfaction of them; or suppose he had gone to Roach with his judgment upon the collaterals and Roach had paid him for that, or in satisfaction of it the $1,300, it would have satisfied only so much of the amount due him for his loan. It certainly would not have satisfied the loan. The case then stands thus. Duckworth has received $1,300, less the costs in the Croker judgment, which he was bound to allow as a payment upon the amount due him for his loan. The sum of $640, bid by Croker at the sale of the collaterals, has been allowed, and the balance of the $1,300, after deducting that sum and the costs, should be allowed as a payment upon the Duckworth judgment. The balance due thereon, after allowing such payment, is justly due Duckworth, and there is no reason in law or equity why he should not be permitted to collect the same. My reasoning so far has been upon the theory that the sale of the bonds to Croker was a mere sham, and did not bind Cornell or cut off his right in the bonds as pledgor. It is unSICKELS VOL. L. 51 Opinion of the Court, per EARL, J. doubtedly the rule that the pledgee cannot, at a sale by him of the property pledged, himself legally become the purchaser. (Bryan v. Baldwin, 52 N. Y. 232.) But the sale in such case is not absolutely void, but voidable only at the election of the pledgor. He may ratify the sale, and if he elects to do so then the sale becomes perfectly valid and effectual. If, in this case, Cornell without fraudulent collusion with Duckworth assented to this sale, or with knowledge that Duckworth was really the purchaser in the name of Croker ratified the sale, then it was effectual and valid as against him, and Duckworth became the absolute owner of the bonds with a title as good against the whole world as he would have if he had purchased them at the time he took them in pledge. It does not appear in the record whether Cornell did or did not ratify the sale, and hence the case may here be disposed of upon the assumption that the sale was not binding upon him. It is difficult to perceive how Duckworth can possibly be charged with any fraud upon the plaintiffs. He certainly as yet has done them no harm, and deprived them of no rights. They have not yet been subjected to any liability, or to the payment of any money which was not justly due from them. He may have been mistaken as to the effect of his sale of the bonds to Croker. He may have supposed that in that way he could obtain valid title to the bonds, and thus enforce payment of them as his own. But he had the right to foreclose his lien upon the bonds, and thus acquire full title to them if he could, for any sum he would have to pay, and then enforce them for his own benefit for the amount due upon them; and all this he could do, Cornell not complaining, without being guilty of any fraud. There is no finding or proof that he was colluding with Cornell to enforce the bonds for his benefit. The result of this discussion is that Duckworth has a judgment for a few hundred dollars more than is due him and more than he has any right to collect. The remedy of the plaintiffs is to tender or pay the sum due, and then if Duckworth refuses to cancel the judgment, they can apply to the court by motion to compel cancellation or to stay execution. A suit Statement of case. in equity is not needed, and is not the proper remedy. (Lansing v. Eddy, 1 Johns. Ch. 49.) As to the two judgments for costs upon the appeals, there can be no relief against them. The judgment of the General and Special Terms should be reversed, and as there is no aspect, upon the facts alleged and found, in which this action can be maintained, the complaint should be dismissed, with costs. The judgment should be affirmed. All concur with EARL, J., except MILLER and DANFORTH, 95 403 126 78 In the Matter of the Probate of the Will of MARY O'HARA, deceased. MARY O'HARA et al., Appellants, v. WILLIAM H. DUDLEY et al., Respondents. Where a person, even by silent acquiescence, encourages a testator to make a devise or bequest to him, with a declared expectation that he will apply it for the benefit of others, this has the force and effect of an press promise so to apply it, as if he does not intend so to do, the silent acquiescence is a fraud. ex Where the gift is to several as joint tenants and the promise to carry out the declared purpose of the testator is made by one of them it is obligatory upon all. In the case of such a declared intention and promise, if the testator has named some certain and definite beneficiary, capable of taking the provision intended, the law fastens upon the devisee or legatee a trust which equity, in case of his refusal to perform, will enforce on the ground of fraud. If, however, the uses enjoined are for the benefit of persons incapable of taking, or of a character in direct violation of the law of the State, if the devisee or legatee repudiates his obligations, this is a fraud upon the testator; if he is willing to perform, his so doing would be both a fraud upon the law and against the heirs and next of kin, and equity will for their protection in either case fasten a trust ex maleficio upon the devisee or legatee. M., by her will, gave the bulk of her estate to three persons, who were her lawyer, her doctor, and her priest, absolutely as tenants in common. It Statement of case. was not intended by her to give to the persons named any beneficial interest, but her design was to devote the property to certain charitable purposes; this she was advised could not be done by express provision in her will, but only by such an absolute gift to individuals, to whose honor she could confide the execution of her purpose, She signed a letter of instructions, cotemporaneous with the will, addressed to the legatees and devisees, stating the reason for the gift and dictating the purpose, which was in substance that during their lives, and after their deaths by some permanent arrangement to be made by them, the income of specified portions of the fund should be given to indeterminate persons of their selection, and any surplus of income to such charities as they might select. The will was executed in reliance upon a promise of the legatees to apply the fund faithfully and honorably to the charitable uses so specified. In an action to establish a trust which, failing as to the beneficiaries, should result to the heirs at law and next of kin, held, that the gift could not be sustained as an absolute one to the persons named, as this would be a fraud upon the testatrix; that the secret trust attempted to be created could not be enforced, nor would equity permit it to be carried out, as it was in violation of the statute against perpetuities, but would impose a trust upon the fund for the benefit of the heirs and next of kin; and that therefore the action was properly brought. (Argued February 7, 1884; decided April 15, 1884.) THESE are appeals, in the matter first entitled, from a judgment of the General Term of the Supreme Court, entered upon an order made December 17, 1882, which affirmed at decree of the surrogate of the county of Kings, admitting to probate the will of Mary O'Hara, deceased; in the action second entitled the appeal is from a judgment of said General Term, entered upon an order made June 1, 1883, which affirmed a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term. The nature of said action and the material facts are stated in the opinion. Geo. H. Starr and Samuel D. Morris for appellants. The language of the letters, delivered to and accepted by the defendants, is the highest, best evidence of the intentions of the testatrix (within all the rules of evidence), and the verbal declarations of the defendants now made, in so far as they Statement of case. tend to vary, or contradict, or modify the meaning or force of the language of the letters, should go for nought. (Jones v. Jones, 10 Hun, 442; Grierson v. Mason, 60 N. Y. 397; Jones v. Bradley, L. R., 3 Eq. Cas. 635; L. R., 8 Ch. Div. 440; Williams v. Fitch, 18 N. Y. 547-552; Oliffe v. Welles, 130 Mass. 224; Williams v. Vreeland, 32 N. J. 135, 734; Clark v. Leupp, 88 N. Y. 229; Tracy v. Tallmage, 14 id. 181; Downing v. Marshall, 23 id. 387.) The letters and all the provisions thereof are mandatory and not precatory. ( Williams v. Fitch, 18 N. Y. 546; Williams v. Vreeland, 32 N. J. 135, 734; Glass v. Hulbert, 102 Mass. 39; Walgrave v. Tebbs, 2 K. & J. 321; Drakefield v. Wilks, 3 Atk. 540; Reech v. Kennegal, 1 Ves. Sr. 122; Hoge v. Hoge, 1 Watts [Penn.], 214-217; Muckleston v. Brown, 6 Ves. 51; Russell v. Jackson, 10 Hare, 204; Strickland v. Aldridge, 9 Ves. 515; Tee v. Ferris, 2 K. & J. 357; Boson v. Stathan, 1 Eden, 508; Mose v. Cooper, 1 J. & H. 352; McCormick v. Grogan, L. R., 4 H. of L. 82; Jones v. Badley, L. R., 3 Eq. Cas. 635-641, 658; Rowbotham v. Dunnett, L. R., 8 Ch. Div. 430-443; Walgrave v. Tebbs, 2 K. & J. 313.) Where devisees take as "joint tenants," the act and promise of one binds them all. (Tee v. Ferris, 2 K. & J. 367.) A devise to "joint tenants" is an indication of a trust. (Saltmarsh v. Barrett, 3 De G., F. & J. 279; Hooker v. Oxford, 33 Mich. 453; Moss v. Cooper, 1 J. & H. 352; Huguenin v. Basely, 14 Ves. 289; Jones v. Badley, L. R., 3 Eq. Cas. 635–641– 658; Horn v. Pullman, 10 Hun, 473; 72 N. Y. 278, 279; 1 Greenl. on Ev., § 174; Shailer v. Bumstead, 99 Mass. 1978; Atkins v. Sanger, 1 Pick. 192; Smith v. Sargent, 2 Hun, 107; Walgrave v. Tebbs, 2 K. & J. 321-2; Fowler v. Gold, 67 N. Y. 143; Crans v. Hunter, 28 id. 393-5; Krumm v. Beach, 25 Hun, 293-297; F. L. & T. Co. v. Walworth, 1 Comst. 447.) The provisions, or so-called trusts contained in the letters are all invalid. (2 R. S. [6th ed.] 1106, § 55; 1101, § 15; 1167, § 1; Schettler v. Smith, 41 N. Y. 334-5; Adams v. Perry, 43 id. 497-500; Garvey v. McDevitt, 72 id. 561; Levy v. Levy, 33 id. 101, 103; Dashiel v. Atty. |