Peckham, J.

David Dunham Withers, the executor of his father’s will, died on the 18th day of February, 1892, leaving a will which was admitted to probate by.the surrogate of Hew York county, and letters testamentary were issued thereon by him to the plaintiff herein on the 16th day of March, 1892. This action is brought for the purpose of having the accounts of David Dunham Withers, as executor of the will of his *507 ■father, Beuben Withers, settled and allowed,- and the rights ■and interests of all the parties interested in the estate of the father finally settled and determined and a distribution made in accordance with such determination. From the time that David Dunham Withers - qualified as executor in 1870 the •estate remained in his hands up to his death, and at that time the estate was invested in various securities, some of them standing in the name of the executor individually, some in the name of the estate of Beuben Withers, deceased,’ and some in the name of Beuben Withers. Since the death of the widow of Benben Withers in March, 1878, the estate has largely increased in value by the appreciation of certain of the securities in which it was invested. The investments made by Beuben Withers in his lifetime were kept substantially unchanged during the life of the widow, and from her death •down to the death of the executor, David Dunham Withers*, the investments remained also about the same, with some named exceptions which appear in the accounts of the executor. The failure of the executor, upon the death of the widow, either to pay the sum of $20,000 in money for each of the four trust funds, or to actually and formally allot and set apart ■the various trust shares from the balance of the estate, together with the large appreciation in the value of some of the securities belonging to the estate, have given occasion for this controversy.

The question has arisen substantially Detween the interests of the sisters on the one side and those of the brothers on the other.

On the part of the sisters it is claimed that they should share ro rata in whatever rise in value there was in the securities in which the estate was invested, because, as alleged, those securities represented the trust estates belonging to them under the will of their father.

. . On the part of the brothers, on the contrary, it is claimed that they should be paid the whole residue of the estate after deducting the amount of the various trust estates provided for .by the terms ,of the will. In other words, the representatives *508 of the brothers’ interests claim that they alone are entitled to the whole of the estate, be it great or small, after the sisters have had their four shares of exactly $20,000 each.

Up to the death of the executor in 1892, the brothers, since the death of the mother in 1878, were paid all the income arising from the investment'of the estate, after deducting a sum amounting to the legal interest on each of the four sums of $20,000. The interest actually paid to the sisters during all this time amounted to a little over $71,000. Taking the total value of the estate at the death of the widow to have, been in round numbers $140,000, there remained after deducting therefrom a trust fund of $13,000 under the third clause, and one of like amount under the sixth clause of the will, for the two brothers respectively, and the $80,000 trust fund for the sisters, a balance to be divided between the brothers of $34,000; but as the above sums of $13,000 each were also given in trust for the sons it is just to say that taking them together, the $34,000 and the $26,000, would leave $60,000 to be divided between them as against $80,000 to be divided between the sisters.

Mo division was, however, made, and by reason of the appreciation in the value of the securities' in which the estate remained invested, the brothers were from time to time paid as income upon their interest in such estate a total sum of a little over $95,000, and there is now a large fund (after providing for the trust estate), awaiting distribution under the direction of the court, the whole of which is also claimed on the part of the brothers or those representing their interests. If the securities had been sold and a formal division of the moneys made upon the death of the widow the brothers, upon the assumption that the whole estate was of the above-mentioned value, would have taken in the proportion above set forth.

If an actual setting apart and- allotment of certain special securities had been made, such allotment would of course have been made according to the judgment of the executor, and no one can now say what that judgment would have *509 dictated. But the division, segregation and allotment once being made, the sisters would then have received all the benefits resulting to them from an appreciation of the stock which had been allotted and set apart for them. As there was no formal division of such securities the result is claimed to be that all these benefits accrue solely to the interests owned by the brothers.

Notwithstanding the omission of the executor (who was also trustee) to formally make this separation and division, the sisters claim the right to share proportionately to then* interests in the estate as it existed at the death of the widow, in the increase in the value of the securities in which the estate has all along been invested. This claim in our judgment should be allowed. We think that by the language used in the ninth clause of the will the testator authorized his executor either to pay .the legacies for his daughters in money to the amount of $20,000 each, which should be thereafter invested, or to allot and set apart to them out of the estate of the testator in his hands securities of such estate of the value of $20,000 for each fund. If the latter were done, the rents, issues, income and profits would belong to the persons owning the trust estate. And we agree that if he chose to set apart and allot securities from the estate, he could have taken any security he deemed best (up to the value stated) without being restricted to a proportionate share of all the securities. What securities he should take for the purpose of forming these trust funds, if he decided to set apart any particular ones, was matter for the judgment of the trustee alone.

The use of the words “ value and amount,” as contained in the ninth clause, indicates only that if the executor were to pay the legacies in money, it should amount to the sum of $20,000 for each of the funds, while if he chose to set apart securities of the estate, they should be of that value for each of such trust funds. As the executor omitted to pay the legacies in money, and as he never formally set apart or allotted any of the securities of the estate for the purpose of forming the four trust funds for the sisters, the question is. *510 whether that formal omission is to result as a benefit to the brothers’ interests exclusively.

The sisters’ shares, by reason of the course pursued by the executor, were in truth all contained in, and were at all times represented by these securities. The testator’s estate consisted of such securities, and out of the testator’s estate the several trust estates were to be formed. In substance the sisters owned as life legatees a certain proportionate share of each security. Although the executor had the right upon the death of the widow to pay these trust legacies in money or to set apart such of the securities in which the estate was invested, as in his judgment he should think best (up to the stated value), yet we think that when he omitted to do either, he must be deemed to have made such allotment proportionately in.all of the securities in which the estate was invested under the provision in the will for continuing the investments of the testator if in the judgment of the executor consistent with the safety of the estate. We think the power to thus .continue such investments remained until the trusts created by the testator had been accomplished and, therefore, it did not terminate upon the death of the widow. As the executor kept the estate in large part invested in those securities even after her death, we think such action on his part can be regarded in no other light than as an investment in these securities of the different interests of those who in reality owned the estate. At any rate the whole estate was owned by these different parties and this whole estate was thus invested in these securities. It was not necessary, in order that each party should enjoy and have the benefit of his or her proportion of such estate, to have a formal allotment or segregation made of the shares of the estate belonging to such person. As long as the whole estate was thus kept, each party in fact owned his or her proportionate share of the income from and the principal pf each security. . It was only necessary to determine the value of the estate at the time of the death of the widow, and. the sisters’ interests would be in the same proportion in pack security, and in the income arising therefrom, as the total *511 of the trust funds ($80,000) bore to the total value of the estate at the widow’s death, and the balance would belong to the brothers. Convenience of administration might dictate the keeping of the estate in sólido. It is not fatal to this view of the action of the executor to admit that he did not regard the sisters as entitled to any portion of the income beyond the simple interest which he paid, nor any part of the increase in value of the securities and that he, therefore, paid over to the brothers all the income arising from the securities above a sum amounting to the legal interest on the nominal amount of the trust funds.

His view of the legal rights of the sisters is not important. His action in making payments as stated is to be considered only in its bearing upon the meaning or legal effect of his keeping the estate unseparated. It is said he never intended to make any such allotment of a proportionate interest in the securities as we now assume he did in fact make, because if he had he would then have paid their proportionate share of the whole income arising from such securities. This by no means follows. He might have supposed it was proper under the circumstances that the whole estate should be kept invested as it was, because in his judgment the investments were good, and that in his opinion all that each sister would be entitled to, even if a formal allotment were made of a proportionate share in each security, would be the legal interest on $20,000, the extent of the trust fund. We think that by the retention of these securities he did come to a conclusion that in his judgment they were proper investments for the whole estate. He would not have retained them had he decided otherwise. In determining to keep the whole estate so invested, he in fact determined that the securities were proper investments for the trust estate of the sisters. In this way and to this extent he may be said to have invested their estates, and so permitted them to claim that he had allotted to them a proportionate share of each security in which the whole estate was invested. He failed to pay the legacies in money and he also failed to Satisfy them by an actual allotment of specific securities to the *512 value stated by the testator, and as he still kept the estate in one gross mass, he necessarily gave to the sisters an interest in each security to" an extent proportioned to their interest in the estate which such securities represented.

There is no question in regard to the possible liability of the executor for an improper investment. It cannot arise here, although it may he said that so far as appears, the executor discharged his duty in entire good faith, with strict integrity and in such a way that the contest in this case arises out of the increase in the value of the estate while in his hands. That kind of violation of duty by trustees is not very frequent in the records which we review.

It is also urged that in pursuing this system of keeping the whole estate undivided the trustee was doubtless actuated by the highest solicitude for the safety and productiveness of the trust funds, and that the effect of his action was to constitute the owners of the residuum of the estate sureties during all these years for the maintenance of the trust fund at the full sum of $80,000 up to the entire absorption of such residuum, while at the same time the sisters were in the receipt of an income measured by the legal rate of interest upon the full sum of $20,000 for each sister. It is said that such a rate of interest is much more than could have otherwise been obtained from any investment which was at the same time so well secured. Whether the balance of the estate was in effect such surety is a question which does not here arise and need not be discussed. Counsel for the brothers allege that if there had been losses suffered by the depreciation in value of these securities the sisters would undoubtedly have claimed that such losses should fall wholly on the remainder of the estate over and beyond that which was necessary to constitute the trust funds, and'that these sisters would have claimed such to be their rights, because there had never been any formal allotment and setting apart of any securities, and that they would be, therefore, entitled to the payment of $20,000 each before the brothers were to have anything. In the case supposed there would, of course, be a very different state of facts from those *513 now existing. There would have been losses instead of gains, and whether the one or the other interest should suffer the loss or any portion of it, would have to be decided in the light of the facts as they should then appear. What might have been the result of a contention upon facts which never occurred, and under circumstances which probably would have differed radically from those now under our observation, it is plainly useless to speculate concerning. What we now say is that in the face of these acknowledged gains to the estate, taking the language of the will under which the executor could pay the legacies in money or by allotting securities, the very fact that he did not pay in money and did keep the estate invested and without any formal allotment of particular securities in satisfaction of such legacies, gave to each sister a proportional interest in each security, and enabled them to claim and to take the proportion belonging to them of the income arising from and of the increase in the value of the security. By keeping the whole estate thus invested the sisters’ shares in the estate of their father were necessarily represented in these securities, and, of course, they should be entitled to the increase accruing therefrom. The judgment of the executor was thus exercised in favor of all the securities instead of in favor of any particular ones and instead of paying the legacies in money.

But it is argued that the decree of the surrogate, upon the accounting made by the executor, is conclusive against this view of the case, and it is claimed that such decree is binding upon all these parties. It may be observed that the children of the daughters, Mrs. Ludlow, Mrs. Clason, and Mrs. Paine, who are entitled in remainder to these legacies, were not made parties to the accounting, and that as to them, and for the purpose of a division of the principal of the fund, there can he not the slightest foundation for the application of the principle of estoppel. We are of opinion, however, that the decree does not stand in the way of asserting the views above expressed. It was given upon an accounting by an executor, and after making several other provisions the decree in effect *514 only provided that the executor should pay over the trust fund to himself as trustee, and invest the same as trustee, “ as in said ninth clause or section of said will is directed.” We do not think that this language changes or was intended to change the power of the executor under the will to pay the legacies in money or to satisfy them by setting apart securities of their value, as allowed in the will. The language of the decree would not prevent the executor from exercising all the powers given by the will, and it was not the object of the accounting to obtain a construction of the will as to the power of the executor to invest or continue investments. The direction in question was nothing more than a formal direction to the executor to go on and pay these four sums of $20,000 each in the manner directed by the will.

It is a fact, however, that the moneys were not paid, even though directed by the decree, and in the absence of such payment we think the effect of the action of the executor in keeping the whole estate together, and invested as already stated, was not altered by the entering of the decree.

ISTor do we think the receipt of interest by the sisters is an acquiescence in the correctness of the assumption that such an amount is all that they were ever entitled to. There is no finding and no evidence that they or any of them knew that the securities in which the estate was invested earned more than enough to pay them that amount as their proportionate share. Because for a number of years the brothers have received more and the sisters less than they were legally entitled to from these securities, is no reason why such injustice should be continued and perpetuated for the future.

Ho one else has been harmed by such payments as have been made to the sisters, and no one but themselves has been harmed by the excessive payments made to the brothers. The facts make out no defense of acquiescence.

In our view the fundamental fact to be found is as to the value of the estate, and of the various securities in which it was invested at the time of the death of the widow, and we agree in this respect with the views expressed by counsel for the plaintiff, that *515 the surrogate’s decree does not conclusively fix that value at that time, either at $139,530.30, or any other sum. The appraised value in the inventory as we think related to the appraisal as made in the inventory of the first executor, Mr. Bowdoin, in 1867, and did not relate to the value of the various securities at the time of the widow’s death. That fact must be first stated, and then there should be deducted from that sum the- amount of the trust created for the benefit of the testator’s son Alfred D. Withers, being $13,000, and an equal sum should then be deducted for the benefit of the testator’s other son, Reuben, and the proportion which the sum of $20,000 bears to the total value of the estate, as thus found and after such deductions, is the proportion which each sister would be entitled to of the securities of the estate upon an accounting. The same proportion would be coming to them from the income, and upon the inquiry which is now to be made it must be determined what amount may be- now due in order to equalize the income upon the basis herein stated.

The question which has been raised as to which of the parties, the life legatees or those entitled in remainder, should have the benefit of the increase in the income and principal, should be answered in favor of the life legatees. It came to them, as it seems to us, by force of the circumstances adverted to, and by reason of the language of the will and the clear intent of the testator.

As there is no question regarding the accounts of the executor in any other matter, we think the judgment appealed from should be affirmed in all things except as to the interests of the brothers and sisters in the distribution of what remains of the estate. The counsel for the appellants stated on the argument that there was a sum in the hands of plaintiff which, if distributed upon the basis we have above indicated, would be large enough to give to them the amounts which would be due them as principal and income, without calling upon any one else for a payment. The inquiry will, therefore, be confined to the distribution of the fund actually in the hands of the plaintiff. It should be distributed in accordance with *516 the views which we have stated, and the judgment is, therefore, modified accordingly, and the proceedings remitted to the Supreme Court for its further action. The plaintiff and the appellants should recover costs in this and the Supreme Court, to be paid out of the general estate, hlo costs to the respondents other than the plaintiff.

All concur, except JBabtlett, J., not sitting.

Judgment accordingly.