ment should be affirmed, with costs, and that our order shall state that the determination in this action shall be no bar to nor authority against the maintenance of any action or proceeding by or in behalf of the contingent remainder-men, as may be advised, to secure their rights or interests in the corpus of the trust fund.

BARTLETT, J. (dissenting). I cannot vote to affirm the judgment below. The facts, as settled by a unanimous decision of affirmance, require the intervention of a court of equity.

Samuel Freeman died in Saratoga Springs in December, 1870, leaving a will appointing defendant his executor and trustee. The defendant duly qualified. The will provided that the income of the residuary estate should be paid to the plaintiff, his daughter, with a limitation not now important, and at her death the trust fund "to go and belong to her child or children or descendant," and, in default of any, to "go and belong to the next of kin of testator." The daughter was given the power to dispose of onehalf of the trust fund by will. The residuary personal estate was about $100,000, and the real estate about $10,000. The plaintiff was the only child of testator, and the wife of a clergyman. At that time she had two children, who still survive. Recently a child was born to one of said children. The defendant never took possession or charge of the assets of the estate, but allowed the husband of testator's daughter, under oral authority, until June 28, 1872, to retain the securities of the estate and manage the same. On the last-mentioned date defendint gave a written power of attorney to the daughter's husband to take possession of the property of the estate, real and personal, and manage the same. The business of the estate was so conducted, with the daughter's consent, until September 12, 1889, when she and her two children (the latter then of age) ratified the acts under the power of attorney, and released defendant from liability. On the same day the defendant conveyed all the real estate included in the trust, and acquired by deed, foreclosure, or otherwise, to plaintiff individually. The plaintiff or her husband had been in possession of the real estate of the trust practically since testator's death. The trial court finds the releases were executed freely, voluntarily, and with full knowledge of all the facts, and without fraud, actual or constructive, on part of defendant; that no portion of the estate, real or personal, is in the hands of defendant or plaintiff's husband; that $50,000 of the personal estate has been invested in real estate in New Jersey, and title is now in plaintiff as trustee or individually. Numerous facts are found in detail by the referee and the trial judge as to the manner in which plaintiff and her husband mismanaged and wasted the estate,

real and personal, belonging to the trust, to which reference need not now be made. It appears that all the exhibits are not printed, and it was stipulated nevertheless that they could be read on argument of the appeal. The appellate division, in its statement of facts, recites that at least since 1872 defendant did not take any active part in the management of the estate, that it is conceded he has never accounted as executor or trustee, and that his accounts as such were never judicially passed upon by either court. It also appears in this statement, and in a general way in the findings of the trial judge, that on the 9th of June, 1894, on petition of plaintiff's children, the supreme court made an order accepting the resignation of defendant as executor and trustee, and appointing plaintiff in his place. On this state of facts the trial court dismissed the complaint, with costs; granting the defendant an extra allowance of $2,000. The appellate division unanimously affirmed the judgment, but struck out the provision for an extra allowance.

The conclusions of law by the trial judge were, in substance, that plaintiff ought to account before asking defendant to account "for something which he never had"; that the releases extinguish any cause of action of plaintiff or her children against defendant; that the relation between the defendant and the beneficiaries of the trust was not that of trustee, but of life tenant and remainder-men; that plaintiff is a debtor to the trust fund in a much larger sum than her income could possibly amount to, and, if she could recover the trust fund, she could apply no portion of it to her own use; that plaintiff is not trustee for remaindermen or contingent remainder-men, and is not charged with any active duty in their behalf; that no action for devastavit can be maintained by the trustee, but only by the remainder-man when his estate vests; that the complaint should be dismissed. A reference to the opinion of the appellate division is necessary before stating my views as to the proper disposition to be made of this cause. The learned judge who expressed the views of the court referred to these points, among others, viz.: That the appointment of plaintiff as sole trustee was incompatible with her position as cestui que trust, but her appointment cannot be attacked collaterally; that it was the duty of the defendant to preserve the corpus of the estate, make it produce an income if practicable, and, although he was not an express trustee for the remainder-men, the law implies a trust in their favor, making it incumbent upon him to preserve the principal, and account therefor at expiration of trust; that by statute every conveyance in contravention of a trust is void; that as against the plaintiff individually and her children, upon the facts stated, the equities are all with the defendant; that defendant, while

acting in good faith, was guilty of a breach of trust; that the principal breaches of trust occurred 25 years before the commencement of this action; that assuming, without deciding the question, that the trustee may maintain a suit for devastavit for the benefit of remainder-men, yet, as to the contingent remainder-men, in view of the great hardship and injustice that would result to defendant, and considering, also, that plaintiff, if not wholly liable, is jointly liable with defendant to such remainder-men, it is proper for the court to withhold such relief, and leave it to such contingent remainder-men, should they ever take a vested interest, to redress the wrong for themselves; that this action should have been brought by plaintiff individually as well as trustee, but issues raised by pleadings involve her rights individually, and the decision binds her in each capacity; that defendant cannot be required to restore the trust fund for the sole purpose of enabling plaintiff to receive her annuity in future; that the doctrine of estoppel and laches applies to plaintiff, and that to award her relief would permit her to receive a second time money that she once has bad; that the conclusions thus reached are not in conflict with the authorities holding that a trust may not be abrogated, that the beneficiary interest is not assignable, and that, as against parties who are not innocent purchasers, a beneficiary or trustee may disaffirm an act in contravention of the trust, and recover the property.

I have endeavored, as briefly as possible, to make clear the precise position of the courts below. I wish to say at the outset that I have great sympathy for the learned and aged defendant, who has honestly, but mistakenly, allowed his heart to dominate his judgment in this transaction, extending over more than a quarter of a century. Nevertheless it is the plain duty of this court to apply those familiar principles of equity that are clearly applicable to the amazing situation here disclosed, and see to it that a hard case does not make bad law. I am of opinion that the undisputed facts require a court of equity to retain jurisdiction of the case, and ultimately enter a decree adjudicating the rights and liabilities of all the parties.

The first error in the decision below is the determination that the contingent remainder-man is not represented by the plaintiff as trustee, and that the latter owes him no active duty of protecting his interests. The next error is that, assuming the trustee does represent the contingent remainder-man, yet, owing to the acts of the plaintiff in her individual capacity, and the hardship of defendant's present position, a court of equity ought not to take jurisdiction, but leave the contingent remainder-man to redress his own wrongs in an action brought at some remote period, when his rights become vested, and

The

he is entitled to immediate enjoyment. fact is that this case has been practically decided as if it were a litigation between the defendant and the life tenant individually, as sole beneficiary under the trust, and entitled to the entire trust fund. The complaint has been dismissed for the reason that the plaintiff individually was estopped from making any claim against the defendant. It is quite possible that when a proper accounting is had the plaintiff individually may be placed in a position where, as between her and the defendant, she is not entitled to make any claim for income, but is liable to make good a large sum to the corpus of the trust. The main difficulty is that the dual capacity of the plaintiff, while not overlooked, has been practically ignored. I agree with the appellate division that, while the plaintiff sued as trustee, the issues framed, tried, and decided involved her individual rights to some extent. The trial court found that a child had recently been born to one of the plaintiff's children, and it was so stated on the argument, and appears in the briefs of both counsel, that the event happened since this action was commenced. The advent of this child had a most important bearing on this litigation, as there is now in being a person who may be entitled ultimately to the entire corpus of the trust fund, provided the plaintiff's children do not survive her, a person who is not bound in any way by the releases and various transactions found by the trial court. It is the undoubted rule that a court of equity will not undertake to adjudicate the rights of possible parties in interest, not in esse. The suggestion of respondent's counsel that the plaintiff should not be permitted to avail herself of any possible cause of action in favor of the contingent remainder-men, who are at present uncertain and unknown, is contrary to the fact, as well as to principle and precedent. A contingent remainder in real estate is a vested right, descendible as property, by statute and at common law. Hennessy v. Patterson, 85 N. Y. 91, 103. "Expectant future estates, as defined in the statute, do expressly include all remainders, whether vested or contingent." Moore v. Littel, 41 N. Y. 66, 84. They are, by statute, descendible, devisable, and alienable. "In general it seems that contingent interests pass to the real and personal representatives, according to the nature of such interests, as well as vested interests, so as to entitle such personal representatives to them when the contingency happens." Fearne, Rem. 364; Kenyon v. See, 94 N. Y. 563, 568. In the case at bar, while the interests of the remaindermen are vested, their enjoyment is as much dependent upon contingencies as are the rights of the contingent remainder-man. The rights of all are property that the trustee is required to protect against that day when the lawful remainder-man shall come to his own. The intention of the testator

In

may well be resorted to at this point. He made a will clear in scheme and legal in conception. He selected his executor and trustee with more than usual judgment and caution, naming an able jurist and lawyer to fill that responsible position. The defendant accepted the trust, thereby covenanting with the dead to carry out his testamentary provisions in letter and in spirit. The testator gave simply income to his daughter for life. He bequeathed nothing to her husband. He provided for the disposition of the residuary estate at his daughter's death to the last possible contingency, thus requiring the preservation of the corpus of the trust estate until the time of final distribution. From the death of the testator, by a series of acts, the defendant has wrought the complete subversion of the trust, and the contingent remainder-man has succeeded to a barren property right, unless a court of equity can aid him now, while the actors in this suit, principals and witnesses, are living, to place in the hands of a responsible and vigilant trustee the wreckage of this trust estate, if it can be discovered and rescued. Railroad Co. v. Nolan, 48 N. Y. 517, this court said: "The trustees are the parties in whom the fund is vested, and whose duty it is to maintain and defend it against wrongful attack or injury tending to impair its safety or amount. The title to the fund being in them, neither the cestui que trust nor the beneficiaries can maintain an action in relation to it, as against third parties, except in case the trustees refuse to perform their duty in that respect, and then the trustees should be brought before the court as parties defendant." In the case at bar the defendant, as trustee, resigned by permission of the court; and the plaintiff, for the time being, at least, is the trustee upon whom rests the obvious duty of preserving the trust estate. 2 Pom. Eq. Jur. (2d Ed.) §§ 1065, 1067; Upham v. Wyman, 89 Mass. 502. In the case last cited, the learned judge writing said: "The court is bound to look beyond the rights of those immediately interested in the subject-matter of the suit, and to take care that the trust fund is protected from loss, and preserved, as far as possible, unimpaired, for those who will be ultimately entitled to it. A court of equity will not turn cestuis que trustent in remainder over to the personal responsibility of a trustee, to obtain a remedy for his neglect or misconduct, or that of a tenant for life, when it has means of redress within its reach by which a trust fund can be restored or kept unimpaired." This court, in Wetmore v. Porter, 92 N. Y. 76, held that it is no defense to an action brought by an executor, as such, to recover assets of the estate in the hands of a defendant, or for the conversion thereof, that plaintiff, in his individual capacity, acted in collusion with the defendant in despoiling the estate; that whoever receives property, knowing that it is the sub

ject of a trust, and has been transferred by the trustee in violation of his duty or power, takes it subject to the right, not only of the cestui que trust, but also of the trustee, to reclaim possession, or to recover for its conversion. Ruger, C. J., said at page 85: "We see no reason why a trustee who has been guilty even of an intentional fault is not entitled to his locus penitentiæ, and an opportunity to repair the wrong which he may have committed." Again, at page 82: "It is an alarming proposition to urge against the legal title which a trustee has to trust funds that his recovery of their possession may be defeated by a wrongdoer, upon the allegation that the lawful guardian of the funds colluded with him in obtaining their possession. The dual character maintained by an individual who is also engaged in the administration of a trust involving the control and custody of another's property is not only recognized by numerous decisions in the courts, but has also been the subject of frequent statutory enactments."

*

The fallacy of the holding by the trial court that the only relation existing between the trustee and the remainder-men was that of life tenant and remainder-men is further demonstrated by the fact that the real estate in this trust has been conveyed, changes in investment have been made by strangers to the trust, and the funds generally wasted. It is true that, in case of a trust in real estate creating a life estate and remainder over, on the falling in of the life estate no conveyance is necessary from the trustee to the remainder-men, as the office of trustee ceases, and the title is transferred by operation of the statute. In re Livingston, 34 N. Y. 555. The rule has no application to this case, under its peculiar facts, and an active duty rests upon the trustee to rescue the estate. The fact that plaintiff's interests as trustee and individually are conflicting only makes clear the gross impropriety of the order appointing her the successor to the defendant in the trust.

I have reached the conclusion that when the appellate division decided that it was proper to withhold relief from the contingent remainder-man, and remitted him to a remote and uncertain remedy, against a trustee without assets, it was in conflict with the law that a trust may not be abrogated (Douglas v. Cruger, 80 N. Y. 15), and that, as against parties who are not innocent purchasers, a beneficiary or trustee may disaffirm an act in contravention of the trust, and recover the property (Sherman v. Parish, 53 N. Y. 483; Wetmore v. Porter, 92 N. Y. 76; First Nat. Bank v. National Broadway Bank, 156 N. Y. 459, 51 N. E. 398, 42 L. R. A. 139). The unqualified dismissal of the complaint should not be upheld, as this judgment is a stumbling block in the way of the contingent remainder-man, even if it be assumed he is not technically bound by it. If affirmed by this court, the judgment is a controlling au

thority against him. The trial court was advised of the existence of the contingent remainder-man, as it has found the fact, and it should have allowed the cause to stand over, on its own motion (Code Civ. Proc. § 452), on such terms as were equitable, until the plaintiff brought in the contingent remainder-man as a necessary party, and properly amended her complaint. The infant party ought to be represented by separate and competent counsel, who should not only submit his rights to the court, but affirmatively attack the order which accepted the resignation of the defendant as executor and trustee, and appointed the plaintiff as his successor, and pray that it be set aside and a new trustee appointed; also pray that the defendant, as executor and trustee, and the plaintiff, both as executor and trustee and individually, account for the corpus of the trust estate; also pray for personal judgments against them in favor of the estate for so much of the assets as have been wasted; also pray that any assets of the estate, real or personal, be conveyed and transferred to the new trustee to be appointed; also pray for such other relief as may be proper. In the present status of this estate the contingent remainder-man is the only person who is not involved in the irregular transactions disclosed by the findings, and in a position to rescue the trust estate, or recover judg, ments for the benefit thereof if the assets are hopelessly wasted.

The judgments of the trial term and appellate division should be reversed, with costs to abide the event, a new trial ordered to take place, and a general accounting to be had after the infant contingent remainderman is brought in as a defendant and issue joined, according to the directions contained in this opinion.

PARKER, C. J., and HAIGHT, J. (O'BRIEN, MARTIN, and VANN, JJ., in result), concur with GRAY, J. BARTLETT, J., dissents.

Judgment accordingly.

(170 N. Y. 315)

NATIONAL PROTECTIVE ASS'N OF STEAM FITTERS AND HELPERS et al. v. CUMMING et al. (Court of Appeals of New York. April 1,

1902.)

LABOR UNIONS-RIVAL ORGANIZATIONS-COMPELLING DISCHARGE.

Where a labor union refuses to permit its members to work with fellow servants who were members of a rival organization, and notifies the employer of that fact, and that a strike will be ordered unless such servants are discharged, with intent to secure only the employment of approved workmen, or to secure the exclusive employment of its members on their own terms, and the employés objected to are discharged, neither they, nor the organization of which they are members, have a right | 63 N.E.-24

of action against the union, provided that no force is employed or unlawful act committed. Vann, Bartlett, and Martin, JJ., dissenting.

Appeal from supreme court, appellate division, First department.

Action by the National Protective Association of Steam Fitters and Helpers and others against James M. Cumming and others. From an order of the appellate division (65 N. Y. Supp. 946) reversing a judgment for plaintiffs, they appeal. Affirmed.

Andrew J. Shipman, for appellants. Charles Steckler and Levin L. Brown, for respondents.

PARKER, C. J. The order of the appellate division should be affirmed, on the ground that the facts found do not support the judgment of the special term. In the discussion of that proposition, I shall assume that certain principles of law laid down in the opinion of Judge VANN are correct, namely: "It is not the duty of one man to work for another unless he has agreed to, and if he has so agreed, but for no fixed period, either may end the contract whenever he chooses. The one may work or refuse to work at will, and the other may hire or discharge at will. The terms of employment are subject to mutual agreement, without let or hindrance from any one. If the terms do not suit, or the employer does not please, the right to quit is absolute, and no one may demand a reason therefor. Whatever one man may do alone, he may do in combination with others, provided they have no unlawful object in view. Mere numbers do not ordinarily affect the quality of the act. Workingmen have the right to organize for the purpose of securing higher wages, shorter hours of labor, or improving their relations with their employers. They have the right to strike (that is, to cease working in a body by prearrangement until a grievance is redressed), provided the object is not to gratify malice or inflict injury upon others, but to secure better terms of employment for themselves. A peaceable and orderly strike, not to harm others, but to improve their own condition, is not in violation of law." Stated in other words, the propositions quoted recognize the right of one man to refuse to work for another on any ground that he may regard as sufficient, and the employer has no right to demand a reason for it. But there is, I take it, no legal objection to the employé's giving a reason, if he has one, and the fact that the reason given is that he refuses to work with another who is not a member of his organization, whether stated to his employer or not, does not affect his right to stop work; nor does it give a cause of action to the workman to whom he objects, because the employer sees fit to discharge the man objected to, rather than lose the services of

the objector. The same rule applies to a body of men, who, having organized, for purposes deemed beneficial to themselves, refuse to work. Their reasons may seem inadequate to others, but, if it seems to be in their interest as members of an organization to refuse longer to work, it is their legal right to stop. The reason may no more be demanded, as a right, of the organization than of an individual; but, if they elect to state the reason, their right to stop work is not cut off because the reason seems inadequate or selfish to the employer or to organized society. And if the conduct of the members of an organization is legal in itself, it does not become illegal because the organization directs one of its members to state the reason for its conduct.

The principles quoted above recognize the legal right of members of an organization to strike (that is, to cease working in a body by prearrangement until a grievance is redressed), and they enumerate some things that may be treated as the subject of a grievance, namely, the desire to obtain higher wages, shorter hours of labor, or improved relations with their employers; but this enumeration does not, I take it, purport to cover all the grounds which will lawfully justify members of an organization refusing, in a body and by prearrangement, to work. The enumeration is illustrative, rather than comprehensive; for the object of such an organization is to benefit all its members, and it is their right to strike, if need be, in order to secure any lawful benefit to the several members of the organization, -as, for instance, to secure the re-employment of a member they regard as having been improperly discharged, and to secure from an employer of a number of them employment for other members of their organization who may be out of employment, although the effect will be to cause the discharge of other employés who are not members. And whenever the courts can see that a refusal of members of an organization to work with nonmembers may be in the interest of the several members, it will not assume, in the absence of a finding to the contrary, that the object of such refusal was solely to gratify malice, and to inflict injury upon such nonmembers. A number of reasons for the action of the organization will at once suggest themselves in a case like this. One reason apparent from the findings in this case, as I shall show later, is the desire of the organization that its own members may do the work the nonmembers are performing. And another most important reason is suggested by the fact that these particular organizations, associations of steam fitters, required every applicant for membership to pass an examination testing his competency. Now, one of the objections sometimes urged against labor organizations is that unskillful workmen receive as large compensation as those thoroughly competent. The exam

ination required by the defendant associa tions tends to do away with the force of that objection as to them. And again, their restriction of membership to those who have stood a prescribed test must have the effect of securing careful as well as skillful associates in their work, and that is a matter of no small importance, in view of the state of the law, which absolves the master from liability for injuries sustained by a workman through the carelessness of a co-employé. So long as the law compels the employé to bear the burden of the injury in such cases, it cannot be open to question but that a legitimate and necessary object of societies like the defendant associations would be to assure the lives and limbs of their members against the negligent acts of a reckless coemployé; and hence it is clearly within the right of an organization to provide such a method of examination and such tests as will secure a careful and competent membership, and to insist that protection of life and limb requires that they shall not be compelled to work with men whom they have not seen fit to admit into their organization, as happened in the case of the plaintiff McQueed. While I purpose to take the broader ground. which I deem fully justified by the principles quoted, as well as the authorities, that the defendants had the right to strike for any reason they deemed a just one, and, further, had the right to notify their employer of their purpose to strike, I am unable to see how it is possible to deny the right of these defendant organizations and their members to refuse to work with nonmembers, when, in the event of injury by the carelessness of such co-employés, the burden would have to be borne by the injured, without compensation from the employer, and with no financial responsibility, as a general rule, on the part of those causing the injury; for it is well known that some men, even in the presence of danger, are perfectly reckless of themselves and careless of the rights of others, with the result that accidents are occurring almost constantly which snuff out the lives of workmen as if they were candles, or leave them to struggle through life maimed and helpless. These careless, reckless men are known to their associates, who not only have the right to protect themselves from such men, but, in the present state of the law, it is their duty, through their organizations, to attempt to do it, as to the trades affording special opportunities for mischief arising from recklessness. I know it is said in another opinion in this case that "workmen cannot dictate to employers how they shall carry on their business, nor whom they shall or shall not employ"; but I dissent absolutely from that proposition, and assert that, so long as workmen must assume all the risk of injury that may come to them through the carelessness of co-employés, they have the moral and legal right to say that they will not work with certain men, and the employer