Supreme Court, December, 1921. [Vol. 117. DAVIS, J. This action is brought by plaintiff, as trustee under a certain trust agreement, for a judicial settlement of his accounts as trustee and for advice and instructions as to his future administration of trust. Plaintiff is a trustee under an instrument executed April 20, 1909, by Elizabeth Croker and Richard Croker, Sr., the parents of the plaintiff. The defendants are Richard Croker, Sr., father of plaintiff; Ethel C. White and Florence C. Morris, plaintiff's sisters; Howard Croker, brother of plaintiff, and Ethel C. White, an executrix under the will of her mother, Elizabeth Croker, deceased. Under this agreement Elizabeth Croker and Richard Croker, Sr., sold, assigned and transferred to the plaintiff certain property consisting of mortgages amounting to $98,000 and $20,359.26 in money in trust, to collect the income. and to invest and reinvest and to pay the net income in equal shares to Elizabeth Croker and Richard Croker, Sr. In the event that one-half of the income should not amount to $5,000 the trustee is directed to pay to Elizabeth Croker an additional sum sufficient to make $5,000 per annum, and to pay the balance of income over $5,000 to Richard Croker, Sr. The trust agreement further provides that upon the death of either Elizabeth Croker or Richard Croker, Sr., the survivor shall receive the entire net income, and upon the death of the survivor the principal and all accumulations of income shall be paid over in equal shares to the children then living of Elizabeth Croker and Richard Croker, Sr., other than the plaintiff, who waived for himself and his heirs all right of participation in the trust fund. Plaintiff accepted the trust and has continued to discharge the duties incident thereto without compensation. The nature and extent of the account to be rendered by the plaintiff will depend largely upon the effect of the following provision of the trust Misc.] Supreme Court, December, 1921. agreement: "It is expressly agreed and made part of this instrument that the terms and conditions hereof and of the trusts and estates herein created or any of them may from time to time be revoked, modified or changed in any particular, by instrument in writing, duly signed and acknowledged by the parties of the first part and delivered to the party of the second part or his successors in the trust." It is claimed by the defendant Richard Croker that he revoked the trust agreement of April 20, 1909, by an instrument in writing according to the terms of the trust agreement. The plaintiff Croker claims that his father had no power to revoke the trust after the death of Mrs. Croker. Thus, as a counterclaim, the defendant Richard Croker, Sr., alleges that the bonds and mortgages described in the trust agreement were the proceeds of funds belonging to him and that the money mentioned therein was also owned by him and were assigned and paid over to the plaintiff without any valuable consideration in trust for the purposes set forth in the trust agreement; that Elizabeth Croker died on the 6th day of September, 1914; that thereafter and on or about August 2, 1917, defendant Croker executed and caused to be delivered to the plaintiff an instrument in writing, duly acknowledged on said date, revoking the said trust agreement of April 20, 1909, and all the trusts and estates created thereby and directing and requiring plaintiff to convey and return to defendant Croker all of the original trust fund and its proceeds. The instrument of August 2, 1917, is duly acknowledged, and, after recitals referring to the deed of trust, proceeds as follows: "Now, therefore, I, the said Richard Croker, do hereby revoke the said instrument hereinbefore referred to and all of the trusts and estates created therein. I further direct and require the said Richard Croker, Jr., that he shall immediately Supreme Court, December, 1921. [Vol. 117. upon receipt of notice of this revocation, convey and return to me all of the original trust fund, cash, notes, bonds, mortgages and other securities and all investments or reinvestments of the same, or of the income or proceeds thereof, together with all of the income derived from said trust funds or of the investment or reinvestment thereof, not heretofore legally disbursed by the said Richard Croker, Jr." (Ex. 6). None of the other parties to this action acquiesced in this attempted revocation. The question to be determined at the outset is whether the defendant Richard Croker, Mrs. Croker being then dead, had power under the terms of the trust agreement of April 20, 1909, to revoke the trust thereby created. The plaintiff contends that the power to revoke the trust did not survive the death of Mrs. Croker and that by the terms of the trust agreement revocation could be effected only by the joint act of Mr. and Mrs. Croker. On the other hand, the defendant Richard Croker, Sr., claims that the trust agreement reserved to the grantors the power of revocation, as permitted by section 144 of the Real Property Law, and that the execution of the power of revocation is therefore governed by section 166 of the same law. Section 144 provides that "the grantor in a conveyance may reserve to himself any power beneficial or in trust which he might lawfully grant to another; and a power thus reserved shall be subject to the provisions of this article, in the same manner as if granted to another." Section 166, Real Property Law, is as follows: "Where a power is vested in two or more persons, all must unite in its execution; but if before its execution, one or more of such persons dies, the power may be executed by the survivor or survivors." In my opinion, the purpose of section 166 is to prevent the failure of a trust through the death of one or more of the donees of the Misc.] Supreme Court, December, 1921. power in trust. It aims to preserve the trust. The defendant Richard Croker invokes the aid of this provision to destroy the trust, not to uphold it. For this reason I think it has no application to this case. Moreover, this section (166) is written in most general terms and would not be controlling where the intention of the trustors that the right of revocation should be exercised by both jointly and not by the survivor is so clearly expressed as here. At the date of the execution of the trust agreement in question Mr. and Mrs. Croker were living apart. It is satisfactorily established by the evidence that a considerable part of the property constituting the trust fund had belonged to Mrs. Croker and that it was the purpose of both Mr. and Mrs. Croker to provide through the medium of the trust agreement an income for Mrs. Croker during her life, and upon the death of both to cause the trust fund to go to their children, except the plaintiff. Thus the agreement provides that upon the death of either Mrs. Croker or Richard Croker, Sr., the net income should be paid to the survivor for life, and upon the death of the survivor the trustee is required to pay over the entire principal, with all accumulations of income thereof, to the children of Mr. and Mrs. Croker who may then be living, in equal portions, other than the plaintiff. By the same instrument plaintiff waived all right to a share in the trust fund as well as all commissions. We may assume from the evidence that the trustors were not on such terms as would lead either to give the other the right to revoke the trust in favor of their children in the event of the death of either. This assumption is supported by the language of the revocation clause. The revocation must be 66 ' by instrument in writing duly signed and acknowledged by the parties of the first part *" To hold that either party to the trust agreement could revoke the Supreme Court, December, 1921. [Vol. 117. trust upon the death of the other would defeat one of the important purposes of the trust, to wit, the creation of remainders in the children of Mr. and Mrs. Croker, and would be subversive of the intent expressed in the revocation clause. It is therefore my view that the defendant Richard Croker had no right of revocation of the trust agreement after the decease of Mrs. Croker. The revocation to be effective had to be the joint act of Mr. and Mrs. Croker. There remains the question as to whether plaintiff has properly disposed of the income of the trust fund. During Mrs. Croker's lifetime she was entitled to receive and did receive the income of the fund up to $5,000 a year, and the balance belonged to Mr. Croker. It is satisfactorily shown by the evidence that Mr. Croker instructed the plaintiff to add his share of the income to the corpus of the trust fund, his expressed desire being to increase the fund for the benefit of his children, and it was so disposed of by plaintiff. The defendant Richard Croker contends that such a direction would be void and in violation of section 16 of the Personal Property Law. I think section 16 has no application to the present case. It refers solely to directions for accumulations of income contained in an instrument in writing. In my opinion the question of unlawful accumulation of income under section 16, Personal Property Law, is not involved in this case. Here the instructions were oral and they disposed of personal property belonging to defendant Croker, which he saw fit to use to increase the trust fund for the benefit of his children. He had a perfect right to increase the corpus of the trust fund, and whether it were done from his share of income or from his property derived from other sources is immaterial. Central Trust Co. v. Falck, 177 App. Div. 501, 509. The plaintiff acted upon the instructions of defendant |