Laughlin, J.:
On the former appeal herein by the substituted trustees from an interlocutory judgment overruling their demurrer to the complaint on the ground, among others, that it failed to state facts sufficient to constitute a cause of action, this court sustained the complaint. (Newton v. Jay, 107 App. Div. 457.) The material facts bearing upon the sufficiency of the complaint and which have now been substantially proved as alleged, are stated in our former opinion, and may, therefore, so far as pertinent to the questions presented by this appeal, be discussed without being restated. Our decision [329]*329on the former appeal constitutes the law of this case, so far as this court is concerned, and it follows upon proof of the allegations of the complaint that the plaintiff is entitled to some appropriate equitable relief.
After the former decision on the appeal answers were interposed by all of the defendants and the issues were brought to trial. The learned trial justice found every material fact alleged in the complaint and sustained every claim made thereon by the plaintiff with one exception. The learned counsel for the substituted trustees evidently contended on the trial, as he now does here, that the clause in the mortgage given by the defendant Anna Benkard Hunt, Frederick Percy Hunt, Lilian Catherine Hunt and Reginald Sidney Hunt, all of her children, excepting the respondent Rupert Herbert Hunt, who at thejhue of the execution of the mortgage was an infant and did not join therein, to Thomas Charles Line, made on the 1st day of July, 1898, providing that the said Anna Benkard Hunt, at the request of and with the concurrence of her adult children, released to them and to all persons interested in the trust estate as a condition of obtaining the loan from the mortgagee the power of appointment in unequal shares conferred upon her by herself or reserved to her by the indenture of November 18, 1879, to the end and intent that the trust estate should thereupon vest absolutely in her four children named therein, being all of her children, including the infant, share and share alike, subject only to her life interest therein, was not effectual to release and extinguish the power of unequal appointment among her children, that is to say, that it did not divest her of authority to exercise the power of appointment which she reserved or gave to herself by the indenture of November 18, 1879. If the trial justice had sustained the contention made in behalf of the plaintiff on this point, the judgment would have presently attached not only to the income, which, by the trust indenture, was given to the trustees for the use of the settlor of the trust during her life, but to a three-quarters interest in the remainder of the corpus of the estate as well, provided the remainder vested absolute in the children as was assumed by the parties to the mortgage and was asserted by both appellants and respondents and assumed by this court without examination on the former appeal. If the right of the children to share equally in the remainder had [330]*330become fixed and vested absolute or absolute as to the settlor of the trust even though they only took a contingent estate in remainder and was no longer subject to be changed by an exercise of the power of appointment, the three of the four remaindermen who had attained their majority were perfectly competent to assign or to give an equitable mortgage on their vested interests, and such we consider it to be, whether such interests were vested absolute or subject to be divested by some event other than the exercise of the power of appointment, for their interests were alienable, as will be shown presently.
The notice of appeal of the plaintiff is, as has been stated in the statement of facts, from many parts of the judgment, which, however, depend upon the decision of the single question as to whether the settlor has, as against the owner of the indebtedness and the holder of the mortgage, extinguished all right to further exercise any power of appointment with respect to directing by will or otherwise that her children shall take the remainder in unequal shares, or that one or more shall take to the exclusion of others or another.
The learned counsel for the appellants other than the plaintiff request the court to reconsider the decision made on the former appeal, principally upon the-ground that the court overlooked or failed to follow the decision of the Court of Appeals in Noyes v. Blakeman (6 N. Y. 567). On the former appeal herein that case was cited in the points and examined by the court, but it was not deemed necessary to consider it in the opinion, for it was deemed inapplicable, in view of the later decision in Schenck v. Barnes (156 N. Y. 316), which expressly decided that where the settlor of the trust reserves to himself the beneficial interest for his life, such beneficial interest is subject to the claims of creditors, even though he were solvent at the time he created the trust. It necessarily follows from that decision that the prohibition against the alienation by a life beneficiary of rents, issues and profits, contained in section 63 of article 2 of title 2 of chapter 1 of part 2 of the Revised Statutes, does not apply where the life beneficiary is the settlor of the trust; and it necessarily follows that it was competent for the settlor of the trust to assign her interest in the income, as she did in the case at bar, by giving a mortgage thereon. Nothing in the case of Noyes v. Blakeman (supra) was, we think, intended to decide that [331]*331the estate of the remaindermen, was by virtue of section 60 (1 R. S. 729) of the Revised Statutes vested in the trustees, so that their interests were inalienable. That point was not then presented for decision. The trustees took the interest and title of the beneficiary and the possession of the fund or property, to enable them to perform the trust; but the beneficiary has a right to have the trust performed and has a standing in equity to enforce it (Van Cott v. Prentice, 104 N. Y. 45, 53), and the trustees did not take the estates in remainder. (Baltes v. Union Trust Co., 180 N. Y. 183; Stevenson v. Lesley, 70 id. 512; Embury v. Sheldon, 68 id. 227, 234; Losey v. Stanley, 147 id. 560, 568.) The rule on this subject is the same, both with respect to personal property and with respect to real property. (Hutton v. Benkard, 92 N. Y. 295, 304; Cook v. Lowry, 95 id. 103, 111.) Estates in remainder, even if subject to be divested, are alienable. (Stringer v. Young, 191 N. Y. 157; Ham v. Van Orden, 84 id. 257, 270; Matter of Tienken, 131 id. 391, 401. See, also, Baltes v. Union Trust Co., 180 id. 183, and Hotchkiss v. Elting, 36 Barb. 38, 46.) It follows, therefore, that it was competent both for the beneficiary and for the remainder-men to give an equitable mortgage on their respective interests in the income and in the corpus of the estate as they did.
It was stated in the opinion on the former appeal, in effect, that the settlor of the trust, by her agreement with the parties in interest, as already stated herein, and by executing the mortgage, extinguished any right she had to make a further appointment with respect to the division of the remainder between her children. The decision of that question was not necessarily involved and is, therefore, not res adjudícala.
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Laughlin, J.:
On the former appeal herein by the substituted trustees from an interlocutory judgment overruling their demurrer to the complaint on the ground, among others, that it failed to state facts sufficient to constitute a cause of action, this court sustained the complaint. (Newton v. Jay, 107 App. Div. 457.) The material facts bearing upon the sufficiency of the complaint and which have now been substantially proved as alleged, are stated in our former opinion, and may, therefore, so far as pertinent to the questions presented by this appeal, be discussed without being restated. Our decision [329]*329on the former appeal constitutes the law of this case, so far as this court is concerned, and it follows upon proof of the allegations of the complaint that the plaintiff is entitled to some appropriate equitable relief.
After the former decision on the appeal answers were interposed by all of the defendants and the issues were brought to trial. The learned trial justice found every material fact alleged in the complaint and sustained every claim made thereon by the plaintiff with one exception. The learned counsel for the substituted trustees evidently contended on the trial, as he now does here, that the clause in the mortgage given by the defendant Anna Benkard Hunt, Frederick Percy Hunt, Lilian Catherine Hunt and Reginald Sidney Hunt, all of her children, excepting the respondent Rupert Herbert Hunt, who at thejhue of the execution of the mortgage was an infant and did not join therein, to Thomas Charles Line, made on the 1st day of July, 1898, providing that the said Anna Benkard Hunt, at the request of and with the concurrence of her adult children, released to them and to all persons interested in the trust estate as a condition of obtaining the loan from the mortgagee the power of appointment in unequal shares conferred upon her by herself or reserved to her by the indenture of November 18, 1879, to the end and intent that the trust estate should thereupon vest absolutely in her four children named therein, being all of her children, including the infant, share and share alike, subject only to her life interest therein, was not effectual to release and extinguish the power of unequal appointment among her children, that is to say, that it did not divest her of authority to exercise the power of appointment which she reserved or gave to herself by the indenture of November 18, 1879. If the trial justice had sustained the contention made in behalf of the plaintiff on this point, the judgment would have presently attached not only to the income, which, by the trust indenture, was given to the trustees for the use of the settlor of the trust during her life, but to a three-quarters interest in the remainder of the corpus of the estate as well, provided the remainder vested absolute in the children as was assumed by the parties to the mortgage and was asserted by both appellants and respondents and assumed by this court without examination on the former appeal. If the right of the children to share equally in the remainder had [330]*330become fixed and vested absolute or absolute as to the settlor of the trust even though they only took a contingent estate in remainder and was no longer subject to be changed by an exercise of the power of appointment, the three of the four remaindermen who had attained their majority were perfectly competent to assign or to give an equitable mortgage on their vested interests, and such we consider it to be, whether such interests were vested absolute or subject to be divested by some event other than the exercise of the power of appointment, for their interests were alienable, as will be shown presently.
The notice of appeal of the plaintiff is, as has been stated in the statement of facts, from many parts of the judgment, which, however, depend upon the decision of the single question as to whether the settlor has, as against the owner of the indebtedness and the holder of the mortgage, extinguished all right to further exercise any power of appointment with respect to directing by will or otherwise that her children shall take the remainder in unequal shares, or that one or more shall take to the exclusion of others or another.
The learned counsel for the appellants other than the plaintiff request the court to reconsider the decision made on the former appeal, principally upon the-ground that the court overlooked or failed to follow the decision of the Court of Appeals in Noyes v. Blakeman (6 N. Y. 567). On the former appeal herein that case was cited in the points and examined by the court, but it was not deemed necessary to consider it in the opinion, for it was deemed inapplicable, in view of the later decision in Schenck v. Barnes (156 N. Y. 316), which expressly decided that where the settlor of the trust reserves to himself the beneficial interest for his life, such beneficial interest is subject to the claims of creditors, even though he were solvent at the time he created the trust. It necessarily follows from that decision that the prohibition against the alienation by a life beneficiary of rents, issues and profits, contained in section 63 of article 2 of title 2 of chapter 1 of part 2 of the Revised Statutes, does not apply where the life beneficiary is the settlor of the trust; and it necessarily follows that it was competent for the settlor of the trust to assign her interest in the income, as she did in the case at bar, by giving a mortgage thereon. Nothing in the case of Noyes v. Blakeman (supra) was, we think, intended to decide that [331]*331the estate of the remaindermen, was by virtue of section 60 (1 R. S. 729) of the Revised Statutes vested in the trustees, so that their interests were inalienable. That point was not then presented for decision. The trustees took the interest and title of the beneficiary and the possession of the fund or property, to enable them to perform the trust; but the beneficiary has a right to have the trust performed and has a standing in equity to enforce it (Van Cott v. Prentice, 104 N. Y. 45, 53), and the trustees did not take the estates in remainder. (Baltes v. Union Trust Co., 180 N. Y. 183; Stevenson v. Lesley, 70 id. 512; Embury v. Sheldon, 68 id. 227, 234; Losey v. Stanley, 147 id. 560, 568.) The rule on this subject is the same, both with respect to personal property and with respect to real property. (Hutton v. Benkard, 92 N. Y. 295, 304; Cook v. Lowry, 95 id. 103, 111.) Estates in remainder, even if subject to be divested, are alienable. (Stringer v. Young, 191 N. Y. 157; Ham v. Van Orden, 84 id. 257, 270; Matter of Tienken, 131 id. 391, 401. See, also, Baltes v. Union Trust Co., 180 id. 183, and Hotchkiss v. Elting, 36 Barb. 38, 46.) It follows, therefore, that it was competent both for the beneficiary and for the remainder-men to give an equitable mortgage on their respective interests in the income and in the corpus of the estate as they did.
It was stated in the opinion on the former appeal, in effect, that the settlor of the trust, by her agreement with the parties in interest, as already stated herein, and by executing the mortgage, extinguished any right she had to make a further appointment with respect to the division of the remainder between her children. The decision of that question was not necessarily involved and is, therefore, not res adjudícala. The four justices who are voting for a modification of the decree in accordance with the views expressed in this opinion are equally divided in their views on that question, and for that reason, as well as for another to be stated presently, no opinion is expressed thereon now. In the circumstances, we deem it proper to defer a decision of the question as to whether the settlor of the trust may, by will or otherwise, give any further effectual direction with respect to the shares in remainder which her children "shall take, until her death, and to confine our decision to an adjudication that the plaintiff, by virtue of the mortgage, has a lien upon and is entitled to the income payable under the trust indenture to [332]*332the life beneficiary, and to the interest and estate in remainder which the children, who joined in the mortgage had at the time of the execution of the mortgage of which they shall not have been divested by death or by the exercise by their mother of the right, if any reserved to her, to direct by last will and testament that her children shall take in unequal shares, if she has not released and relinquished such right and the reversionary interest, if any, in the settlor of the trust.
It appears by the judgment roll in an action in the Supreme Court in the county of Hew York, brought by one of the original trustees in July, 1879, against the other two, the settlor of the trust and her husband and her children, for leave to resign and for the substitution of William Jay and Alonzo C. Monson — respondent Rupert Herbert Hunt was not a party, for he was not born until after the termination of the litigation — that with the consent of the settlor, two of the original trustees resigned in 1879, after accounting in that action, and the third then, pursuant to authority conferred upon him by the original trust agreement, named Alonzo C. Monson and William Jay as substituted trustees on the nomination of the settlor of the trust, and then the plaintiff in that action resigned as trustee with the consent of the settlor; that before .these resignations the trustees had decided to exercise the power conferred upon them and advanced to the settlor the sum of $50,000 out of the corpus of the trust fund on condition that she should exercise the power of appointment reserved to her in the original trust indenture, which was a general power of appointment to be exercised by her by a last will and testament or an instrument in the nature thereof, and in default of such exercise, it was provided that the remainder should pass under the laws of the State of Hew York with respect to intestate property ; that she had exercised this power of appointment by the indenture of Hovember 18, 1879, to which reference is made and which is more fully described in the opinion of this court on the former appeal, and that,the court, in and by the judgment in that action, entered Hovember 26, 1879, accepted the resignations of the trustees and the appointment of the substituted trustees and conferred the same authority upon the substituted trustees as on the original, except as to advancing part of the capital to the settlor and naming successors, and fix[333]*333ing a new basis for the compensation, of the trustees pursuant to the settlor’s agreement with them, and it was further therein adjudged that the settlor had, by making the indenture of November 18, 1879, exhausted all right to exercise the power of appointment, and the court ratified and confirmed the disposition of the estate which she had thus made and adjudged that her action in exercising the power of appointment by said indenture- of November eighteenth was final and exhausted that power, and the $50,000, being the consideration for her exercise of the power of appointment, was ordered paid to her out of the principal. That judgment was, of course, binding upon all the parties and was binding upon the issue of the settlor then unborn, as well as upon issue in being, for their interests were the same as those presumptively entitled to take and they were necessarily represented by them. (Tonnele v. Wetmore, 124 App, Div. 686; revd., 195 N. Y. 436. See, also, Downey v. Seib, 185 id. 427.) It seems to me that the effect of that decree necessarily is that there remains no further authority in the settlor of the trust to exercise the original power of appointment. It would seem, therefore, in view of this decree, that there can no longer be any question with respect to the validity of this trust and the plaintiff has elected to proceed upon the theory that it was valid. Had it not been for the judgment of the Supreme Court, to which reference has been made, there would be a serious question as to whether the settlor could exercise the power of appointment reserved in the original indenture otherwise than by will, but the judgment forecloses that question.
The decree of the Supreme Court to which reference has been made confirms the trust indenture of November 18, 1879, which, in effect, reserves to the settlor authority to revoke by last will and testament the appointment as made, in whole or in part, as to one or more of the children, and to direct that another or others shall take the estate thus cut off, which might result in the children taking in unequal shares. The question whether it was competent for the settlor of the trust, as a condition of obtaining the loan to secure which the mortgage was given, to effectually release and relinquish this reserved right to give a further valid direction by her last will and testament with respect to the shares which the children should take as between themselves, is one which we do not now decide, for [334]*334the reason that it may never arise, as she may not attempt to exercise the reserved authority and the indebtedness may- all be paid out of income, and in no event can it be determined until the death of the settlor of the trust, the precise interest in remainder, if any, which will he subject to the lien of- the mortgage. It appears by the trust indenture of November 18, 1879, that there is a possible interest in reversion in the settlor of the trust, for if all of the children should die during the life of their mother, without leaving lawful issue, the remainder was undisposed of and it would revert to her estate in the absence of a "will otherwise disposing of it. (Baltes v. Union Trust Co., 180 N. Y. 183; Hotchkiss v. Elting, 36 Barb. 38, 46.) We are of opinion also that although each remainderman took a vested interest in -the remainder by virtue of the trust indenture of November 18, 1879, such vested interest was subject to be divested by his death during the lifetime of his mother. The same was doubtless true with respect to his father, but the father has since died, which eliminates that question. The provisions of the indenture of November 18, 1879, upon which this question depends, follow the provisions authorizing the trustees to hold the corpus of- the estate during the life of the husband of the settlor, should he survive, and to pay over to him the surplus rents, issues and profits, and so far as material they are as follows : “And upon his death shall assign, transfer, convey and set over all and singular the said estate real as well as personal unto such children of the party of the first part as shall then be living and to the issue of such of them as shall have died in equal shares per stirpes and not per capita absolutely and forever. And this indenture further witnesseth that the party df the first part hereby reserves to herself the right to vary the disposition hereinabove made of the said trust estate hy her Last Will and Testament or by an instrument in the nature thereof hereafter to be executed 'by her by directing that a certain part of such annual income shall be paid to her children during the lifetime of her' said husband if she shall so desire, and also by directing and appointing that the said estate upon her said husband’s death shall be assigned, transferred, conveyed and set over nnto one or more of her children or to their issue to the exclusion of other of her children and their issue or that such estate be assigned, transferred, conveyed and set over unto [335]*335said children and to their issue in such unequal shares as she may desire and as she may hereafter determine.
“And in the event of there being no child or children of hers, nor issue of a child or children living at the time of the death of the party of the first part, then she reserves to herself the absolute right of disposing of the said trust estate by her Last Will and Testament or instrument in the nature thereof, to any person or persons whomsoever, as she may desire, and she also reserves to herself the right to dispose by Last Will and Testament or by instrument in the nature thereof, of all and singular the said trust estate in the event of all her children departing this life without issue during the lifetime of her said husband, anything herein contained to the contrary in anywise notwithstanding.”
It seems quite clear, in view of these provisions, that any child who predeceases his mother would become divested of any interest in the estate, and that the same would vest on the death of his mother in his issue, and in the event of his leaving no issue then living, in the other children or their issue then living (Matter of Hogarty, 62 App. Div. 79); but they would take under the indenture and not from him.
The construction of the indenture in this regard was not presented for adjudication on the former appeal, and the court did not decide the question. The observation in the opinion on the former appeal that “ upon the execution of the deed of appointment and the relinquishment of the right to further exercise the power of appointment, the interests of the children, which were theretofore contingent, became vested subject only to the life estate of their mother, the legal title, however, being in the trustees ” (107 App. Div. 457, 468), was made with reference to the extinguishment of the right of the settlor to further exercise the power of appointment. The question as to whether the remainder vested absolute in the children, or was subject to be divested, was not only not necessarily involved in a decision of the appeal, but the court was not asked by either party to pass upon the question, and both counsel in their points assumed and expressly claimed that the remainder vested absolute in the children so far as the question now under consideration is concerned — they litigated the question as to the right of the settlor to exercise the authority reserved — and that theory of [336]*336the construction of the indenture is still asserted by the plaintiff and not questioned by the defendants. On this point counsel for the defendant trustees who were the appellants on the former appeal stated in his points as follows : “ The rights of the children of Mrs. Hunt, under the terms of the marriage settlement, as resettled, became vested, and cannot be taken from them except by their consent. It must be borne in mind that the claim in this action is against Mrs. Hunt and all her children; two of her children, Lilian Catherine Hunt and Reginald Sidney Hunt, were parties to the mortgage, but her other son, Rupert H. Hunt, was not a party to the mortgage, and the plaintiff has no claim against him except that the plaintiff is endeavoring in this action to take from him some of his vested rights. Under the deed of trust as resettled the corpus of the estate vested absolutely in the children, subject to Mrs. Hunt’s life estate, and that of her husband, but she expressly reserved to herself the right to dispose by will of the corpus in such shares as she might see fit, and so she can now give to Rupert IT. Hunt the entire corpus of this estate.”
Counsel for the plaintiff who was the respondent stated in his points as follows: “ But, in addition to the interest of Mrs. Hunt, we have also an assignment of the interests of two of her children in the trust estate. That these expectant interests in remainder are assignable needs no argument. They are vested remainders, the possession only being postponed. * * * The power of appointment does not interfere with the vesting.”
It will thus be seen that the question as to whether the estates of the remaindermen were vested absolute, or subject to be divested by their death during the life of their mother, was not presented for decision on the former appeal, but would be necessarily involved if the court should now undertake to decide the precise interest in remainder that will be subject, on the death of the settlor of the trust, to the payment of this indebtedness, and since the interests of the mortgagor-remaindermen are subject to be divested by their death during the lifetime of their mother, it cannot now be known whether any share or interest in the remainder will be applicable to the payment of. the indebtedness, and since we are not in accord on the question as to whether the settlor may, by her last will and testament or otherwise, affect the interest in remainder which any [337]*337child will take, we have reached the conclusion that we should merely declare the mortgage a lien upon the interest of the mortgagors in the estate at the time of the execution of the mortgage of which they shall not become divested by their death during the lifetime of their mother, or by the exercise of the authority or power reserved to the settlor by the trust indenture of November 18,1879, and not cut off or relinquished by the agreement and mortgage to which reference has been made.
The effect of the foreign adjudication was, we think, properly decided by the learned trial justice and needs no further consideration here. We agree with the learned trial justice that the income can be reached as it accrues from time to time in the hands of the substituted trustees. The contingent estates in the remainder of the other mortgagors might, perhaps, be presently reached by directing a sale thereof; but that relief does not appear to have been asked and no objection is made to deferring relief against the remainder until the expiration of the trust.
We think, however, that the court erred in adjudging that the substituted trustees are accountable to the plaintiff for all income received after notice of the claim made by plaintiff under the mortgage. The plaintiff took no further step toward asserting or enforcing "his claim after giving this notice, until he commenced this action some four years thereafter. In view of the fact that the Supreme Court in resettling the trust commanded the trustees to pay the income to Mrs. Hunt, I think they were justified in continuing to pay it after such notice until the plaintiff obtained an injunction, the appointment of a receiver or a judgment of a court of competent jurisdiction, declaring that the lien of the mortgage attached to the income as it accrues. The judgment, therefore, should also be modified by requiring the trustees to account only from the date of the decision of the trial court herein.
The judgment should be modified as herein indicated and by inserting appropriate provisions showing that it is not to be deemed an adjudication on the question as to whether or not it is competent for the settlor of the trust to direct by last will and testament that the remaindermen who joined in the mortgage shall take less than their interests as recited in the mortgage — the modifications to be [338]*338made in the judgment to carry our decision into effect will be determined on the settlement of the judgment to be entered hereon — and as thus modified affirmed, without costs to any party.
Patteeson, P. J., Claeke and Scott, JJ., concurred; Ijtobaham, J., dissented.