See Laws of 1897, chap. 378. Citations not marked with an asterisk refer

to the charter of 1901 as amended.— [REP.

UNITED STATES PROCLAMATIONS, REGULATIONS,

President's Proclamation.

ETC., CITED.

PAGE. President's Proclamation.

PAGE.

R. R. Control, Dec. 26, 1917.. 23 Lever Act, Oleum, Sept. 26,
Lever Act, Oleum, June 27,

1918...

255, 256

HARRIET E. OSTRANDER, Appellant, Respondent, v. GEORGE N. OSTRANDER, Respondent, Appellant.

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Third Department, November 18, 1920.

Trusts testamentary trust to wife during widowhood with remainder to third person · marriage of widow and third person with agreement by husband to hold one-half property in trust for wife unwillingness of equity to interfere with trust agreement, whose principal object was to destroy testamentary trust, except to do exact justice — right of beneficiary to elect to take money instead of property - evidence not establishing modification of trust agreement right of trustee on accounting to credit for sum paid to settle law suit against beneficiary - wife cannot reach lands devised specifically to husband — wife's trust estate chargeable with proportionate share of debts of late husband transfer of title to trust property on payment of money by trustee. The plaintiff by the will of her former husband was made the beneficiary of a trust so long as she should remain unmarried and the defendant was one of the residuary legatees in said will. On the day of the intermarriage of the plaintiff and the defendant an alleged trust agreement was entered into between the parties whereby the defendant agreed to hold in trust one-half of the property which he should receive from the estate of the plaintiff's former husband and to which he became entitled on the plaintiff's marriage to him. Subsequently the plaintiff instituted this action to remove her husband as trustee and for an accounting. Held, that as the agreement between the parties was entered into for the principal purpose of destroying a trust already created by the will of the

Third Department, November, 1920.

[Vol. 194.

plaintiffs' late husband, each of the parties comes into court equally chargeable with the acts, the purposes and the consequences which that instrument denotes.

Under such circumstances it requires more than a mere irregularity affecting none but the parties themselves to move equity toward the advantage of either, except to do exact justice so far as it can be done.

The plaintiff was entitled to elect to take the value of the trust property in money with interest thereon instead of the specific property. The finding of the referee that there was no modification of the trust agreement by which the plaintiff agreed to give the income therefrom to the defendant is supported by the evidence.

The defendant was entitled to a credit for money paid by him to settle an action brought by his former wife against the plaintiff herein for alienation of affections, with interest from the date of payment.

The plaintiff was not entitled to reach wild lands which her late husband devised specifically to the defendant.

The trust estate of the plaintiff will be rightly chargeable with one-fourth of the claims against the estate of her late husband when those claims are liquidated.

The plaintiff having elected to take money for her trust interest instead of securities should, on payment of the same, transfer all her interest, right and title to the property involved herein to the defendant. JOHN M. KELLOGG, P. J., and COCHRANE, J., dissent.

APPEAL by the plaintiff, Harriet E. Ostrander, from a judgment of the Supreme Court in her favor, entered in the office of the clerk of the county of Saratoga on the 24th day of May, 1920, on the ground that the amount for which the defendant is adjudged accountable is insufficient.

Appeal by the defendant, George N. Ostrander, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 24th day of May, 1920, removing defendant as the alleged trustee of plaintiff's property, and finding that he holds of her money $153,039.42, and directing him to pay said amount to the substituted trustee, The Adirondack Trust Company. Brackett, Todd, Wheat & Wait [Edgar T. Brackett and Luther A. Wait of counsel], for the plaintiff.

Edward M. Angell [Joseph A. Kellogg of counsel], for the defendant.

KILEY, J.:

The parties in this action are husband and wife. Upon the trial of this action before a referee plaintiff recovered a