Savage agt. Gould et al. responsibility (Brown's Accounting, 16 Abb. [N. S.], 457 and 466, and numerous cases cited; Tiffany on Trusts, 597, 570; 3 Redf. on Wills, 547, 548; Perry on Trusts, vol. 1, sec. 402). IV. What proof would show that the appellant was incompetent to discharge the duties of this trust by reason of dishonesty? (a) Dishonesty as applied to persons is defined as, "Want of honesty, a disposition to deceive or betray, violation of trust, fraud, any deviation from probity or integrity" (Webster, Worcester). All actual fraud is dishonest, and fraud, though unlimited by any precise definition, is any deception or artifice used to circumvent, cheat or defraud another (Story's Eq. Jur., vol. 1, sec. 186). Embezzlement is clearly dishonesty, and the neglect or refusal of an assent to account for trust property is embezzlement (State agt. Leonard, 6 Cold. [Tenn.], 307). So is the giving of a false account, or the willful omission to acknowledge receipts by a trustee or agent, and therefore dishonest (Rex agt. Jones, 7 Car. & P., 834; U. S. agt. Forsyth, 6 McLean, 584; Bachelder agt. Tenney, 27 Vt., 578). That whatever would constitute fraud would stamp its perpetrator as guilty of dishonesty, is a self-evident proposition. Fraud, says Story (vol. 2 Eq. Jur., sec. 187), properly includes all acts, omissions and concealments which involve a breach of legal and equitable duty, trust or confidence (See, also, Bouv. Dict., vol. 1, p. 612, title "Fraud; Perry on Trusts, vol. 1, sec. 169, et seq.; Gale agt. Gale, 19 Barb., 249-251; Conkey agt. Bond, 34 Barb., 276; Gould agt. Gould, 36 Barb., 270; It is the unlawful appropriation of another's property with knowledge, by design and without criminal intent (Bouv., vol. 1, p. 612). It must be such an appropriation as is not permitted by law, with knowledge that the property is another's and a design to deprive him of it. It is not in itself a crime, though it may be. (Bouv. Dic., sec. 4, p. 613). Dishonesty need not be criminal any more than fraud (Livermore's Penal Law, 739). It is indeed a part of the equity doctrine of fraud not to define it, or lay down specific rules as to the nature of Savage agt. Gould et al. But it includes it, lest the craft of man should elude the rule. all acts, omissions or concealments which involve a breach of trust and is injurious to another (Bouv. Dic., p. 613, sub. 7, vol. 1). Dishonesty bears no resemblance to the word improvidence, as used here in the statute, in the necessity that it should characterize the trustee's conduct in general. One dishonest act, however, is sufficient evidence of moral obliquity. One unmistakably intentional wrong, intending individual gain by unfair means at another's expense, would be clear evidence of that evil propensity and purpose which the law rightly deems it unsafe and injudicious to countenance in the character of trust custodians. No one could deny that the person acting so was guilty of dishonesty. This word does not even require that there should be a criminal intent (Bouv., supra). A man is said to be honest who in his dealings with others does not violate the law (Crabb's Synonyms, 427). Dishonest marks the contrary to honest. It is dishonest to take anything from another which does not belong to one (Id., 430). The meaning of dishonesty employed in this statute being manifest. V. The appellant was incompetent to discharge the duties of this trust by reason of dishonesty, as appeared by the evidence. First. He was so proved to be in the matters of his conversions of the estate and investments as left by the deceased. The conversion of government bonds for investing on grossly insufficient security for bonus, was so manifestly a conversion of the highest security for corrupt motives, and solely for his own gain, regardless of the security of the trust fund, that it was dishonest and a violation of trust, a deviation from integrity, a circumvention of the objections to direct appropriation of the trust moneys in an illegal manner. Second. The appellant was shown incompetent by reason of dishonesty in his investments. Third. The appellant was shown incompetent for the same reason, by his conspiracy with his partner to retain the moneys belonging to the trust estate. The appellant and C. conspired to and did retain the Savage agt. Gould et al. moneys of the estate to which they were not entitled. These amounts which were taken as bonuses were really the moneys of the estate which had never been invested. They never left the hands of the appellant and his partner who was given the money to "invest," &c. In each case they took their moneys out of the fund that was to be loaned, so that in fact it never was loaned, but remained the money of the estate in their hands. In every one of these cases the bonuses belongs to the estate (Perry on Trusts, secs. 429, 430, vol. 1, p. 517). Now if the appellant had taken over $7,000 from the estate and divided it between himself and Case, without any formality, he would be clearly dishonest and guilty of embezzlement. If he had taken it and pretended to give security that was no security, he would be in no better position as regards this appeal. Several of his loans were absolutely worthless, so glaringly so that he must have known thereof. The proof of a reckless conspiracy is strong and conclusive and establishes his dishonesty (Gale agt. Gale, 19 Barb., 249, 251). If a trustee is guilty of a gross neglect of his duty to the estate, he will be deemed guilty of a breach of trust (Tiffany on Trusts, 570, 571). A willful breach of trust is dishonesty. Fourth. The appellant was shown incompetent for the same dishonesty in the taking of usury. The taking of these bonuses even by a trustee (sole) was usurious (Van Wyck agt. Walters, 16 Hun, 209; Stout agt. Rider, 12 Hun, 574; Algur agt. Gardner, 54 N. Y., 360; Estevez agt. Purdy, 66 N. Y., 446; West. Life Ins. Co. agt. Kashan, 66 N. Y., 545; Lee agt. Chadsey, 2 Keyes, 543). Here the trustee in many cases took half of the bonuses and kept it without any cover whatever, and in the balance of the cases he kept nearly half by having it paid on liabilities against him which he would otherwise. have had to pay himself, and hoped and expected to get the balance to make up his half of the entire bonuses. The taking of usury is a crime and the receiver is a criminal (2 R. S. [6th ed.], p. 1166, sec. 15). The maxim "ignorantia juris non excusat" need not be invoked, for the appellant was VOL. LX 32 Savage agt. Gould et al. himself a lawyer and betrayed a knowledge of this rule by his attempts to avoid the consequences. It remains for the trustee to explain these transactions. He has not done so. They were presumptively fraudulent (Evans agt. Ellis, 5 Denio, 640; McCormack agt. Malin, 5 Blackf., 509, 523; Dunlap's Paley, 36; Newman agt. Cordell, 43 Barb., 448; Waverly Nat. Bank agt. Halsey, 57 Barb., 249). The tak ing of usury is an infamous crime, severely condemned by the laws both Divine and human. Its deliberate and professed violation cannot be other than dishonest. He has admitted the taking and division of these illegal bonuses in thirty-one different cases, and it has been proven in ten other cases, thus making forty-one mortgages where usury could be pleaded, amounting to $107,629.33. If it is a crime to take usury in loaning your own money how much the more criminal and dishonest it must be to lend or take usury upon loans made from trust moneys upon which the widow and five infant children of the deceased depend for their support and for the necessities of life. This is dishonesty of the worst character, and for which alone, if for no other reason, he should have been removed. Fifth. The appellant was shown incompetent by reason of his dishonesty in concealment of these bonuses received and divided between himself and C. of over $7,000, which belonged to the estate and should have been included in his accounts. As we argued above, they were funds of the trust which had never changed their character or been invested. (a) A trustee will not be permitted to make profit for himself out of the trust property; and he is equally prohibited from purchasing or dealing with it for his own gain (Colburn agt. Morton, 36 How., 150-160, Court App. and cases; Same Case, 5 Abb. [N. S.], 308-316, Court App.; Littlye agt. Beveridge, 58 N. Y., 592– 606; Fulton agt. Whitney, 5 Hun., 16; 3 Red. on Wills, 402, 403-553; Story's Equity Jur., sec. 1277, a; Levin on Trusts [6th ed.], p. 243; Van Epps agt. Van Epps, 9 Paige Ch., 237; Kellogg agt. Wood, 4 Paige Ch., 578; Holloway agt. Stevens, 48 How., 129). One who joins with him is also Savage agt. Gould et al. disabled (Sweet agt. Jacocks, 6 Paige Ch., 355). An usage authorizing an agent to make a profit upon his principal is a usage of fraud and plunder, and cannot be supported (Diplock agt. Blackburn, 3 Campb., 43). A subordinate or agent of trustee is equally disqualified from making gains out of the estate, where it is to be shared in any way by the trustee (Terwilliger agt. Brown, 44 N. Y., 237–240, 241, affirming 59 Barb., 9; Hawley agt. Cramer, 4 Cow., 717). Nor can the trustee or executor give it to one and then take back a part to himself. (Powers agt. Powers, 48 How., 389). If he charged a bonus in his account for skill and services in conducting the business of the trust it will be set aside (Perry on Trusts, vol. 1, secs. 427, 428, 429, and vol. 2, sec. 904). No profit can be made by them for increase (3 Rev. Stat. [6th ed.], sec. 70, p. 101). Nor can his partner make any profits out of the trust funds, or for the performing of services, unless the partner alone takes the profits. Nor can either charge for professional services where both would share in the proceeds (3 Redf. on Wills, 556, sec. 118; 3 Redf. on Wills, 416, note; Collier agt. Munn, 41 N. Y., 143, 146; Perry on Trusts, vol. 1, p. 520, 521, sec. 432; Lewin on Trusts [6th ed.], p. 249, sec. 15 and p. 243). Whether usurious or not the trustee must account for all gains (Perry on Trusts, vol. 1, p. 571, sec. 468; 3 Redf. on Wills, 406, sec. 18). The rule in England and America is that a trustee must account for all profit he has made (3 Redf. on Wills, 402, sec. 10, 11; 403, sec. 12; 406, sec. 18; Utica Ins. Co. agt. Lynch, 11 Paige Ch., 520). Trustee cannot even charge costs in an action against him personally for acts arising out of his attempts to protect trust property (Pierson agt. Thompson, 1 Edw. Ch., 212). All these bonuses should have been accounted for and were property of the trust (Perry on Trusts, vol. 1, sec. 427, 428, 429, 430, and sec. 468, p. 571; Tiffany on Trusts, 554, 555, 556, 557, 558). (6) Being the moneys and profits of the trust, appellant refused to include them in account, appropriating them to his own use. His accounts, as filed in this |