Thorn v. de Breteuil (86 A.D. 405, 1903)

Jenks, J. :

This action, which was brought March 20,1899, for an accounting, involves the construction of the will of William T. Garner. He left an estate largely in cotton mills, print works and other assets of Garner. & Co., the commission house for the mills. Mr. Garner and his wife died together in 1876, leaving surviving them three daughters as sole heirs and next of kin: Marcellite, born in 1868, now La Marquise de Breteuil; Florence, born in 1869, now Lady Gordon-Cumming; and Edith, born in 1874, now Countess de Moltke-HuitfeldtEach daughter has infant children. The will is- as follows:.

“I, William T. Garner, of Hew York City, do hereby make, publish and declare this as and for my last will and testament, hereby revoking and annulling all other and former wills by me. at any .time heretofore made. ■.

“First. I direct the payment of .all my just debts as soon as practicable after my decease. '

“Second.-1 direct that my executors hereinafter named, or such of those named as shall qualify as such, their survivors or-successors, shall prosecute and carry on with my estate and property, my present business under the firm name of Garner & Co., for and during the lifetime of my wife, Mary Marcellite, and my daughter Florence, and the survivors of them, and that all profits and gains arising from said business shall, after the sum set apart for the support of my wife and children, as hereinafter provided, are- deducted, be added, to and form a part of the working capital of. my estate. -

“ Third. From out the income and profits of my said estate, my executors will pay my beloved wife, Mary Marcellite, during her life, the sum of seventy thousand dollars, net, per annum, to be paid to her in equal monthly payments, upon her individual receipt, free from any abatement or -reduction for any charge or tax whatever. I give to her, also,, and to her heirs forever, all my household furniture, beds, bedding, pictures, books, jewelry, horses, carriages, silverware and- plate owned by me at my decease.;. also the use and occupation, rent free, during her lifetime, of my residence in Hew York City and my country place at Staten Island, the same to be kept in repair by my estate. These provisions for my. wife shall be in lieu and bar. of all claims for dower she may have in my estate. .

“Fourth. From out of the surplus income of my estate my éxecutors will support, educate and maintain my child or children surviving me, and such as may be borne alive of my said wife within nine months after my decease, until they severally attain the age of twenty-five years. Up to such age such executors may advance any child or children such moderate sum or sums of money as, in their best judgment, will benefit or promote the happiness or comfort of such child or children, such advances to be charged against them. As each child attains the age of twenty-five years, said executors shall pay over "to such child or children the full proportionate sum per annum, to which she or he may be entitled, from out of the profits of said business, after my wife’s amount is paid her, with expenses thereof, and my executors will so apportion and divide such income and profits that my sons shall receive twice the sum per annum that my daughter’s receive.

“ In case of the death of any child or children of mine, leaving lawful issue surviving, then the parent’s share shall he paid to such issue, if of age, or used for their education, support and maintenance (or so much thereof as may be necessary) by my executors until such issue attains full age of twenty-one years, when such income shall be paid them in full.

“Upon the death .of my said wife and my daughter Florence, the said businéss .shall be closed and my entire estate settled and divided among my children or their descendants, if any have died leaving children, per stirpes.

“ In case of the death of all my children, leaving no lawful issue or descendants them surviving, upon the death of my said wife, and ' my business being closed, all of my estate of every kind, with all accumulations, profits and gains arising from business or otherwise, shall be divided equally among my sisters, Frances A. Lawrence, Anna J. Garner and my niece, Fannie M. Garner (daughter of my deceased brother Thomas), share and share alike, or the descendants of such as may have died, per stirpes, not per capita, or if either have died leaving no issue or descendants, then such share shall be given to the survivor of those above named.

“ Fifth. I appoint as the executors of this my will Samuel W. Johnson, John I. Lawrence, James F. Thorn and William E. Thorn, and authorize them, or the survivor, to sell and convey all or any part of my real estate left by me, as they may deem advisable, and tb give good and valid' deeds therefor, with full power to change securities and investments, as they deem best.

“ My said executors and my said wife shall be the guardians of the persons, and my said executors shall be the-guardians of the estate tif my children during their minority.

“ In the prosecution of my said business as above directed, the said executors shall not be liable personally for any losses or debts,, except arising from bad faith or gross mismanagement.

“ In witness whereof, I have herewith set my hand and seal this 5th day of April, one thousand eight hundred and seventy-one.”

The executors have carried on the business. The children have been maintained, and, since their twenty-fifth year, respectively, have received one-third of the profits^ In every year since 1878 there was a large surplus of profits added to the capital until each daughter became twenty-five years old.

• The plaintiff seeks an adjudication of "his accounts, discharge, acceptance of his resignation, and the appointment of a certain cor-, poration as his successor. The adult defendants ask for a construction of the will, so that they may be declared severally entitled to receive amounts in addition to their other dues equal to the difference between' one-third of all the income up to the time each attained the age- of twenty-five years and the amount actually, received by them. The record shows this stipulation: “ That in. case the accounts must be restated in the manner claimed by adult defendants, that the sum of $3,830,978.16 is the balance of the net-income of the estate of William T. Garner since his death after deductions of $1,019,732.93 claimed by the trustee and guardian ad litem and the amounts paid to the three adult defendants other than for their support, education and maintenance.”

The Thellusson Act (39 & 40 Geo. III, chap. 98), which is the basis of our legislation upon accumulations, reads in part: “Whereas it is expedient that all dispositions of real or personal estates, whereby the profits and produce thereof are directed to -be accumulated, and the beneficial, enjoyment thereof is postponed, should be ' made subject to -the restrictions hereinafter contained; * * * be it enacted * * * that no person or persons shall, * , * * by any deed or deeds, surrender or surrenders, will, codicil, or otherwise howsoever, settle or dispose of any real or personal property, so and in such manner that the rents, issues, profits, or produce thereof shall be wholly or partially accumulated.” In Shotwell v. Mott (2 Sandf. Ch. 46, 56) it is said that our statute rests on the Thellnsson Act, and the court quotes the revisers’ note that “ The English .act * * . * relates to personal as well as real estates, and the same mischiefs are to be apprehended in each case. The spirit of our' institutions is hostile. to such investments.” (See 3 R. S. [2d ed.] 612.) In Vail. v. Vail (4 Paige,. 317, 332) the chancellor says: “ This law against accumulations is, therefore, a salutary provision in the Revised Statutes; as no man should be encouraged, or even permitted, to withhold the mere income of his estate from those who should be the first objects of his bbunty, for the sole purpose of hoarding up wealth, by compound interest after his death, to provide for a second or a third generation, of whom he can know nothing. Neither is it necessary that he should be permitted to accumulate a fortune, after his death, even for his immediate descendants, to be given to them at the close of their lives, when they are no longer in a situation to enjoy it. It is the duty of the court, therefore, to carry this law into effect, according to its spirit and intent, and in such a manner, if possible, as to correct those evils against which the revisors and the Legislature intended to guard.” (See, too, 4 Kent Comm, [14th ed.] 327, 328, and cases cited.) In the language of Andrews, J., in Pray v. Hegeman (92 N. Y. 508, 515) : “ The Legislature intended to uproot the doctrine that the rents and profits of property might be accumulated and the enjoyment postponed, with a single exception. This was accomplished by sections thirty-seven and thirty-eight. The exception in section thirty-seven must be construed in view of the general policy of the Legislature and the particular policy upon which the exception proceeded.” Parker, Ch. J., cites and adopts this language in Hascall v. King (162 N. Y. 134), saying that the Court of Appeals “ has ever been faithful in giving full force and effect to both the letter and spirit of the statute,” and that “ the meaning which the word ‘ accumulation ’ has in course of time come to have in our law is stated in the Century Dictionary as follows: The adding of the interest or income of a fund to the principal, pursuant to the provisions of a will or deed preventing its Toeing expended.’ The law imposes restrictions on the power of a testator of creator of a trust to prohibit thus the present beneficial enjoyment of a fund in order to increase it for a future generation.”' It is said in Jarman on Wills (6th Am. ed. [Big.] *286) in criticizing Bassil v. Lister (9 Hare, 177), with reference to the Thellusson Act: “ It can scarcely, therefore, be said that the act does not apply because a particular mode of accumulation is resorted to,” referring to the expressions of Cranworth, L. C., in Tench v. Cheese (6 DeG, M. & G. 453, .461) : “If a testator directs that to be done which, as a 'necessary consequence, leads to an indefinite accumulation, he must, within the meaning of the statute, be taken to have directed accumulation ; that rests on a principle of law which is applied to every case, and is pre-eminently applicablé in cases of construction of wills.” Cullen, J., speaking for this court in Matter of Rogers (22 App. Div. 428,431), said: “No principle of public policy declared by our statute law has been more firmly and rigidly upheld by the courts than this inhibition against accumulations. The accumulation must not only be for infants, but it must be exclusively for infants, so much so that if an adult or person not in being is to share in the accumulation, then a trust for the accumulation is void. (Boynton v. Hoyt, 1 Den. 53 ; Kilpatrick v. Johnson, 15 N. Y. 326.) ” The policy of oúr Legislature is plain. The principle' forbids accumulations, and the prohibition of the statute is upon the result, not upon any particular means of reaching it. Whether the profit Of produce be derived from land, a house, a bond or a business is riot material to the principle; it is the heaping up of the returns, rents, interest, profits, that offends the law.

By the 4th clause of the will the testator provides for the support, education and maintenance of his children, but he does not direct the payment of each one’s share of the profits per annum of the business until she has attained the age of twenty-five years. Whatever annual sum represents the excess of profits over charges of the $70,000 payable to his wife, the sums expended for the maintenance of thé children, and any advancements, are to be added to the fund — the working capital of the estate. As to some sums, then, there is an accumulation thereof directed, not during the minority of the children, but until they respectively arrive at the age off twenty-five years, and, .thérefore, by so ranch beyond their respective minorities. Or, if these gains and profits are not to he distributed until the termination of the trust as provided for in the said clause, i. e., upon the death of the wife and the daughter Florence, then there is an accumulation of such gains and profits not directed for a minority. I think that in either event there is an accumulation not directed exclusively for the benefit of minors, and that such directions, so far as they do not contemplate accumulations exclusively for the benefit of infants during their minorities, cannot stand. (Barbour v. De Forest, 95 N. Y. 13 ; Pray v. Hegeman, supra ; Boynton v. Hoyt, supra ; Kilpatrick v. Johnson, supra .)

I now proceed to examine the grounds for the conclusion of the learned and able referee that the provisions of this will are not repugnant to the statutes. He writes that the question in this case is “ whether a direction by a testator to an executor to carry on (the testator’s) business and to add a portion of the profits to the capital for the purpose of maintaining and developing the business is the creation of an estate out of which profits are to arise within the meaning of the statute, and whether the profits of such a business are rents and profits of real estate and income of personal property within the meaning of the statute.” I do not concede that this is an exact statement of the question. The scheme of the testator is not primarily to add a portion of the profits to the capital for the purpose of maintaining and developing the business. He directs the business to be carried on for the lifetime of his wife and of his daughter Florence, and of the survivor of them, and that all profits and gains after the sum set apart for the support of his wife and children is deducted, be added to and form a part of the working capital. He then gives his wife $70,000 a year, and out of the surplus provides for the maintenance of his children until they are twenty-five years old respectively. The terms used are “ profits and gains,” and “ surplus income.” The terms involve the idea of the deduction in the first instance of the expenses of the business. In People v. Supervisors of Niagara (4 Hill, 20), Bronson, J., while stating that “ income ” and “ profits ” are sometimes synonymous, says further that “ ‘ profits ’ generally mean the gain which is made upon any business or investment when both receipts and payments are taken into the account.” (See, too, Matter of Jones, 103 N. Y. 621, 624.) But as soon as the children reached the fixed periods, of twenty-five years, respectively, they are to receive their full proportionate sum per annum out of the profits. The gains and profits are not then to be devoted primarily to the purposes of maintaining and developing the business; they are first to sustain the wife and children, the wife in the stated sum, and the children in all necessary sums, with discretionary advancements, and the excess is to be added to the working capital of the estate. But as soon as the children reach twenty-five years of age, respectively, all of the surplus income and profits are to be devoted to them. • I infer that the retention of the excess in the meantime was based upon the scheme, not that the business should be maintained and developed therewith, but that not until they reached twenty-five years, respectively, would •the children require, or should they be intrusted with, the whole of their income, for the application to the working capital of the excess of profits is not to cease in any period of the business or when any matter incident thereto has been accomplished, but at a fixed period in the life of each child. The paramount consideration, then, was the provision for his children, not the maintenance of the business. Of course, if the excess went to the working capital, it was a benefit thereto, but this does not warrant the statement that the purpose of the testator was to develop or to maintain the business, and there is not a word of the testator which indicates that such was primarily his intent.

Returning to the question as stated by the learned referee, I note that the statute (1 R. S. 726, § 38) does not merely forbid the creation of an estate. Its specific words were: “ And all directions for the accumulation of the rents and profits of real estate except such as are herein allowed, shall be void,” and the present Real Property Law (Laws of 1896, chap. 547, § 51) reads: “All directions for the accumulation of the rents and profits of real property, except such' as are allowed by statute, shall be void.” As to personalty, the statute (1 R. S. 774, § 4) reads : “ All directions for the accumulation of the interest, income or profit of personal property, other than such as are herein allowed, shall be void,” and the present Personal Property Law (Laws of 1897, chap. 417, § 4) reads: “ All other directions for the accumulation of the income of personal property, not authorized by statute, are void.” The learned counsel for the plaintiff, also arguing that there must be a creation of an estate, lays stress upon the fact that the provisions against accumulations are part of the law of the State regulating trust estates, and points out that the words “ creation of the estate ” are used twice in section 37 of the statute (1 R. S. 726). I do not attach much force to this argument. It is entirely natural that provision against accumulation of the rents and profits of real estate should be found within the title “ Of the N ature and Qualities of Estates in Real Property and the Alienation thereof,” and within the article “ Of the Creation and Division of Estates.” It is to be noted that the words “ creation of the estate ” are used in connection with the accumulations that are to commence on the creation of the estate, out of which the rents and profits are to arise, and that there is nothing to indicate that if the accumulations are not directed. in ipsissimis verbis to be made in order to create an estate, that they are without the ban of the statute. Any direction as to profits must be either for accumulation or for application. If it be for the former, then it is opposed to the spirit of the statute as much as if the testator had in express words directed that the profits should constitute an estate. It is the fact of the accumulation, not the form of it, that must control. It is not the nature of the property created by the accumulation, but the accumulation, that offends the statute.

I think that the direction that profits and gains arising from . the said business be added to and form a part of the working capital of the estate is equivalent to a direction for the accumulation of the rents and profits, and of the interest, income and profits of the real and personal estate of the testator. In the first place, the testator directs that the business shall be continued and carried on with his estate and property, so the profits and gains thereof are the continuous earnings of that business, or the continuous returns therefrom as a going concern. He used the terms interchangeably with income and profits, inasmuch as he provided that the profits and gains shall, after the sum set apart for his wife and children is deducted, be added to and form part of his estate. I think that “ profits and gains ” is equipollent with “rents and profits.” “Rent is a certain yearly profit in money, provisions, chattels or labor, issuing out of lands and tenements in retribution for the irse.” (3 Kent Comm. [14th ed.] 728, citing authorities.) “Rent is defined to be a certain profit issuing yearly out of lands, and is a return to the landlord for their annual use.” (Boyd v. McCombs, 4 Penn. St. 146.) It is “a compensation for the premium of a corporeal inheritance, and a profit either in money or some other thing, etc., issuing out of land in return for its use.” (Bloodworth v. Stevens, 51 Miss. 475.) “ It must be a certain profit issuing out of lands and tenements corporeal.” (Van Wicklen v. Paulson, 14 Barb. 654, citing 2 Bl. Com. 20 ; Co. Lit. 19, 20.) In Stephens v. Reynolds (6 N. Y. 454, 458) the court say of rent: “ And it is defined to be a yearly profit, issuing out of lands. It must be a profit, but it is not necessary that it should be-in money.” In Dolph v. White (12 N. Y. 296) the court say: “ Rent is defined to be a certain- profit issuing yearly out of lands and tenements corporeal. (Co. Litt. 141g ; 2 Bl. Com. 41.) ” . In Otis v. Conway (114 N. Y. 13) it is said: “ Technically, rent is something which a tenant renders out of the profits of the land which he enjoys.” Grain means “ that which is acquired or comes as- a benefit; profit.” (Cent. Dict.) In Last v. London Assurance Corporation (10 App. Cas. 438, 450) Lord Fitzgerald says: “ We are bound to adopt the interpretation put on profits ’ in the Mersey Docks v. Lucas, that the expression means 6 the incomings of the concern after deducting the expenses of earning them,’ or ‘income of whatever character it may be over and above the costs and expenses of receipt and collection,’ and that ‘ the gains of a trade are what is gained by the trading for whatever purpose it is used.’ ” This definition is by Selborne, L. C., in Mersey Docks v. Lucas (8 App. Cas. 891,905). This demonstrates that the terms- “ profits,” “ gains,” “income” and “profits and income” all refer tó the annual return from the continuous business of the testator which is to be carried on with his estate and property. There is no such technical or peculiar meaning to the phrase “ rents and profits ” as to deny a synonym in “ profits and gains.” A rent is a profit, and the profit in rents and profits is a profit still. Not only does the testator use the words “profits and gains,” but'also the word “income” to describe the same property. (See, too, Remington v. Field, 16 R. I. 509, 510 ; Sims's Appeal, 44 Penn. St. 345, 347 ; Andrews v. Boyd, 5 Maine, 199.) The plaintiff himself on the witness .stand says: “By income I mean profits of the business—profits, yes, I suppose is the better word, the profits became income.” Thus, Bouvier defines “rents, issues and profits ” as the profits arising from property generally. (2 Bouvier Law Dict. [Rawle’s Rev.] 878.) As to “income,” Jessel, M. R., in Ex parte Huggins (L. R. 21 Ch. Div. 85, 92), said : “ The word ‘income’ is as large a word as can be used.” I think that the words “ gains-” or “ profits ” are also equipollent with the terms “ interest,” “income ” or “ profits” of personal property. Gains certainly is sufficiently generic to refer to whatever is obtained from the use of that property. In People v. Supervisors of Niagara (supra). Bronson, J., says: “ It is undoubtedly true that ‘ profits ’ and ‘ income ’ are sometimes used as synonymous terms; but, strictly speaking, ‘ income ’ means that which comes in, or is received from any business or investment of capital, without reference to the outgoing expenditures; while ‘ profits ’ generally mean the gain which is made upon any business or investment when both receipts and payments aré taken into the account.” Bouvier defines “ income ” as “the gain which proceeds from property, labor or business.” (1 Bouvier Law Dict. [Rawle’s Rev.] 1006.) An act of Congress (14 U. S. Stat. at Large, 478, § 13 amdg. 13 id. 281, § 116) used the term “gains, profits and income of every person,” and the United States Supreme Court held that the assessment thereby prescribed was to be made upon the annual products or income of one’s property or labor, or such gains or profits as may be realized from a business transaction begun and completed during a year. (Gray v. Darlington, 15 Wall. 63, 65.) There is an accurate definition of “ income ” given by Learned, P. J., in People ex rel. Cornell v. Davenport (30 Hun, 177, 186) : “ That which it earns, remaining itself intact.” In fine, whatever this business continuously earned as rent or profits or interest or income or profit, is contemplated and described by the words “ profits and gains ” and “ income ” used by the testator, for rent is a profit, and profit is a gain; interest is a profit or income; income is a gain or a profit, and profit is a gain, and, generally, whatever is received for the hire or for the use of property is a gain. In this case the estate was mainly cotton mills and print works and the other assets of a business. The business house of Garner & Co. was a commission house which acted for the mills. That business has been continued to the present day, and the real and personal estate has been employed therein. In Downing v. Marshall (23 N. Y. 366) the court says: “ I am clearly of opinion that a trust to receive the rents and profits of real estate, and apply them to the use of the beneficiaries named, was marked out in these provisions. The mills were to be carried on by the executors, to. whom, as trustees, the legal estate was expressly devised. It is true that the annual income of the business would be a complex result flowing from the use of the water power, the machinery and the mills; from the profit of capital and the employment of labor. The material consideration is, that the use or profit of land would be one of the constituents in. producing that result; and it might be .the principal one. The executors.were to have the possession of these establishments, and to opprate them for the benefit of the institutions or societies which were the objects of the testator’s "benevolence. In this manner the profit of land was to be received, and, in combination with other elements, it was to be paid over to the beneficiaries. In a trust to receive the rents and profits of real estate, it is not implied that the trustee must lease the estate, because that is not the only or the most usual mode of perception. As the owner of land may lease or occupy it,, so, in creating a trust, he may provide for receiving the use or income in either of these modes.”

A further reason which appears to have warranted the conclusion of the referee is that the profits of a business, added to the capital and thereby increasing the income of the life tenants, does not present an instance of what Lord Justice Lopes, in Vine v. Raleigh (L. R. [1891] 2 Ch. Div. 13, 24), calls a “dry, unproductive cumulus” In Vine v. Raleigh (supra) a trust was created and authority given to expend the surplus income in the improvement of the estate, and in maintaining in good habitable repair houses" and tenements on the property, and the court allowed charges of sums expended from the surplus income for putting up buildings, setting out fruit trees, buying the fixtures óf a public house, saying that the will did not offend the Thellusson Act. But the “ dry, unproductive cumulus ” theory, as applied to this case, presents this proposition: If annual profits of a fund be added annually to 'that fund, then there is no accumulation of such profits, provided a part of the profits of that fund, as thus constituted, be annually paid out to the beneficiary. But the answer is that the beneficiary is deprived of the annual profits rolled up in the fund, and is not compensated by merely a part of the income of the fund, even though the fund’s earning power be thus increased. The excess is surplus profits—is income — and as such it belongs to the beneficiary. Investment for her by adding it to the fund and thereby increasing its earning power is not equivalent to a payment of such profits to the beneficiary. The beneficial enjoyment of such excess profits is thereby postponed, and, if postponed beyond minority, offends the statute.

Vine v. Raleigh (supra) is akin to Matter of Nesmith (140 N. Y. 609). The discrimination between this case and Matter of Nesmith (supra) is found in the fact that there is a radical difference between an absolute direction after the payment of $70,000 annually to the widow and the sum necessary to the maintenance of the children, and advancements, to add' all of the profits to the'fund, and (in the words of Gray, J., in the Nesmith case) “ a discretionary power to make a disbursement of income, in the course of the management of the trust property, * * * restricted to such matters as tend to preserve it, or to make it efficient for earning purposes.”

I think that the mere fact that the money to be accumulated is the result -of a continuance of a business is not material. As I have said, the statute is not aimed at the manner of the gain, but at the accumulation thereof. I can see no reason for that policy which should exclude accumulations of the gains of trade. Certainly the statute itself does not require or even warrant any such limitation of construction or interpretation.

But after a long and. exhaustive discussion of authorities, the learned referee states that the American cases which he cites seem to hold that a beneficiary can prevent a business from being carried on by an executor, and that, on principle, it would seem that a testator who creates a trust for a long term and directs his executors to continue to employ his assets in his business during the trust simply directs that the trust funds be subjected to extreme hazard, and that any beneficiary should have the right to "object. And thereupon he concludes in effect that the business as to the beneficiaries was carried on as if by their consent, and so the property was not held .in dead hand. In the first place, I do not read the American decisions to the effect that when the testator directs the continuance of his business, the beneficiaries can arrest the directions of the will. Willis v. Sharp (113 N. Y, 586) does not warrant the position of the learned referee. It is true that the court says that the executor is not bound to carry on the trade, and that existing creditors might interpose, but the reasons for the rule do not apply to beneficiaries. The particular executor named is not bound, because there enters in the element of personal contract at least in the first (instance; and the creditors may object because their right is payment from present assets and not payment on the contingencies of a business enterprise. Obviously the beneficiary cannot range himself behind either of these reasons. Moreover, in the same case, the court said: “ The courts, while they have sustained with substantial unanimity the validity of a direction of a testator in his will that his trade should be continued, whether his business was that of a sole trader or of a firm of which he was a member, have applied .stringent rules of construction in ascertaining both the existence and extent of the authority of the executor.”

The learned referee cites from Stewart v. Robinson (48 Hun, 327, 329 ; 21 Abb. N. C. 63, 69) the expression of the court that “ a direction by the testator to apply his estate to a partnership for five years, would have been clearly illegal, as against liis creditors, and even his next of kin and d'evisees.” But the court was plainly referring to the period of five years, as one of the points made by the counsel for the respondent was that such provision was a suspension of absolute ownership not limited on life. I find in this statement no authority for-the proposition that a beneficiary could arrest a direction for a continuance of the business otherwise valid. The learned referee also cites the expression in Bell v. Hepworth (134 N. Y. 442) that a statement m Stewart v. Robinson (supra) was “based upon the assumption that the continuance of the business was lawful as to those interested in it, either as lienors or actors so long as they assented to it.” I assume that he draws the inference that the continuance of the business was not lawful if they objected to it; i.