The opinion of the court was delivered by

In 1867, Mary Regina Holley conveyed certain real estate, situate in Fairfield County, to the defendant, “Thomas W. Rabb, and his successors in office, for the sole, separate, and exclusive use, benefit, and behoof of Cassandra H. Rabb (his wife), for and during the term of her natural life, not subject to the debts, contracts, and liabilities of her present or any future husband; and at her death, then in trust to deliver the same to such issue as she might leave living at the time of her death, to be held by them absolutely and discharged from all further trusts.” The said deed, however, empowered the trustee to make all necessary changes for investment of the said trust estate, &c., first procuring the written consent of the said Cassandra, and to hold such substituted property, as might be made, subject to the same trusts as the original. Some time after the conveyance of this property to the said Rabb, he sold a por*193tion, to wit, the portion now in contest here, to the defendant, Flenniken, with the written consent of the plaintiff, Cassandra, both to the agreement of sale and to the deed which he executed to Flenniken. But it appears that Flenniken paid the. purchase money in a note for $625, which he then'held on the trustee, and in family supplies furnished him from the store of the said Flenniken.

This sale took place in 1877, and Flenniken has had possession since that time, and in 1884 the action below was commenced by the said Cassandra and her children named above, praying that the said tract of land be declared charged with the trusts originally imposed upon it; that Flenniken be declared a trustee, and that he be required to account for the rents and profits since the 20th day of February, 1877 (the time of the sale to him), &c. The defendant, Rabb, did not answer, but Flenniken did, admitting many of the allegations in the complaint and denying others, neither of which it is necessary to mention here. He, however, denied that the plaintiffs, the children above, had any interest, such as required them to be parties. He claimed that the sale to himself, under the circumstances, was a valid sale, and he plead the statute of limitations; and finally claimed that he was not accountable for rents and profits, and in any event he was entitled to betterments for valuable improvements, for certain stables and houses, &e., which he had erected on the premises, amounting in value to $1,500, &c.

The case was first heard by his honor, Judge Wallace, who, holding that the children of Cassandra, the plaintiffs, being contingent remaindermen, and therefore neither necessary nor proper parties, made no adjudication as to their rights. He further held that the sale of the land to Flenniken being made with the consent of Cassandra, although a breach of trust, yet having been concurred in by the said Cassandra, the cestui que trust, was valid! in so far as she was concerned. He therefore dismissed the complaint, and he ordered that the proceeds of certain of the rents and profits, which had previously been impounded in the hands of James A. Brice, assignee, be vacatéd. Upon appeal from this decree, this court reversed the judgment as to the validity of the sale to Flenniken, but without prejudice as to any right which he *194might have, to apply the rents and profits of the land while he had been in possession to the payment of the note of the trustee above mentioned, and to the supplies which he had furnished, in the purchase of the said land, and also without prejudice as to his claim for betterments.1

And a second trial was had as to these matters before his honor, Judge Fraser, who, after full hearing, decreed that the rents and profits should not be applied to the note and supplies, but that defendant should be allowed betterments; and finding that the difference between the betterments and the rents and profits was $870, he ordered that plaintiff should have judgment for that sum, confining his decree to the parties then before the court. And he further adjudged, that the defendant do hold the said land as trustee, subject to all the trusts and limitations of the deed of Mary Regina Holley to Thomas W. Rabb, until the same should be conveyed by order of the court to some suitable trustee hereafter to be appointed, and that the plaintiff have leave to apply for an order to have such sum of money, as might be in the hands of Brice, assignee, collected as rents of the land, paid on the judgment for $870, allowed, and, further, that each party pay his own costs.

From this decree, both plaintiff and defendant appealed. The plaintiff, because the “improvements” or betterments were allowed the defendant, Flenniken, and because plaintiff was adjudged to pay her own costs. And the defendant appealed because the rents and profits were not adjudged to be credited with note for $025 held by Flenniken on the trustee, Thomas W. Rabb, mentioned above, and with the supplies furnished, &c.; and, also, because his honor should have held that the action of plaintiff to set aside the deed in question was barred by the statute of limitations. This last exception, we understand, was abandoned at the hearing before us.

It having been decided in this case, in the former appeal, that the sale of the land by Thomas W. Rabb to the defendant, Flenniken, was wholly unauthorized, was, in fact, a breach of trust, because it was made, not for reinvestment, as the deed of trust would have allowed, but in part for the payment of a debt of $625 *195due by the trustee to the purchaser, and in part for the purchase of family supplies, which he, the trustee, was legally bound to furnish himself, and to whom it seems the said supplies were charged, all this with full knowledge by Flenniken of the character of the trust-deed, we know of no principle, either in the text-writers or found in any decided case, which would have authorized the Circuit Judge to credit the note of $625, of Rabb to Flenniken, on the rents and profits. • Nor do we find sufficient reason to interfere with the judgment of the Circuit Judge as to the supplies. The testimony, in the opinion of the Circuit Judge, it seems, did not disclose such a state of facts as to throw the support of Rabb’s family upon the trust estate of his wife. Magwood & Patterson v. Johnson, 1 Hill Ch., 234. It was not error, therefore, in him to refuse this claim.

As to the defendant’s claim for betterments. We think, under the circumstances, they should be allowed. True, Flenniken participated in the breach of trust to the extent of knowing the terms of the original trust deed; but, notwithstanding this, acting, as he did, under the advice of eminent counsel, and no complaint being made to him for years as to his title, he may well have considered that said title was good, as specified in section 1835,- General Statutes, in such cases.

As to the costs. We do not suppose that the Circuit Judge intended to fix the costs of the former appeal upon the plaintiff. If so, this was error; but this question can be made when the costs are taxed, if necessary.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.