lowing defendants the right to pay $5,000 and have complainants retain the Sibley-street property. They also appeal from the allowance made to Howard S. Dean for expenses and attorney fees. The defendants appeal from the decree generally. At the outset the solicitors for defendants say the merits of the claim are not open for discussion, having been finally disposed of by the decree of the probate court, from which no appeal was taken. This claim is based upon the fact that the executrix of the estate of James N. Dean filed a final trustee account in the probate court in the estate of Samuel Skelding October 29, 1901. In this account the real-estate purchase was distinctly set forth, together with the price at which the property had been purchased. Both the complainants certified in writing upon the account that they had examined it, found it correct, and consented to its allowance. After the account was filed, a day was set by order of the court for hearing. It was regularly advertised, and on the day fixed for hearing the account, December 3, 1901, the account was regularly allowed by the probate court. No appeal was taken from this order. In support of this claim the solicitors cite many cases. In view of the fact that we have reached a decision on the merits, we deem it unnecessary to deal with this contention. It is the claim of complainants that they never knew how much Mr. Dean charged them for the two properties until after his death, and that he in fact charged them five or six thousand dollars more than it was worth. It is the claim of the solicitors for complainants that: "In order for complainants to prevail, all they had to prove was: (1) The fiduciary relation of James N. Dean, and (2) the transfer of the Sibley-street property, and the appropriation of their trust fund by the trustee in payment therefor;" citing many cases. They contend, and we quote from the brief: "If a person standing in a fiduciary relation makes use of his position to purchase an interest in the trust property with his own funds, * * * he cannot retain the same for his own benefit, but he must hold it upon a resulting trust for his beneficiary. The prohibition of the purchase of trust property by the trustee does not depend on any question of fraud, but is made absolute to avoid the possibility of fraud. The temptation of self-interest is too powerful and insinuating to be trusted." 1 Perry on Trusts, § 129. "At law, fraud must be proved, but in equity there are certain rules prohibiting parties bearing certain relations to each other from contracting between themselves; and, if parties bearing such relations enter into contracts with each other, courts of equity presume them to be fraudulent, and convert the fraudulent party into a trustee; and herein courts of equity go further than courts of law, and presume fraud in cases where a court of law would require it to be proved; that is, if parties within the prohibitive relations or conditions contract between themselves, courts of equity will avoid the contract altogether without proof, or they will throw upon the party standing in this position of trust, confidence, and influence the burden of proving the entire fairness of the transaction." 1 Perry on Trusts, § 194. "It is thus seen that the rule against purchasing by trustees of the cestui que trust amounts almost to prohibition; for, if a trustee purchases the property and sells at a profit, he must account for it as a trustee, not because there was any fraud in the transaction, but because it is against the policy of the law to allow such transactions. Nor is it material that there should be an advantage or profit arising out of a purchase by the trustee from the cestui que trust. It is not necessary to prove such advantage or profit. It is enough to show the relation and the purchase. The trustee can make no profit from his management of the estate, and he is bound not to put himself in any position where his private interests may conflict with the interests of the cestui que trust. If a trustee purchases the trust property the cestui que trust may have the purchase set aside and the property resold." 1 Perry on Trusts, § 197. These general propositions are not controverted by the solicitors for the defendants, but they say this case comes within well-recognized exceptions to the general rule. They insist the complainants were of full age; that they were fully advised of all the facts at the time the deeds were made; that the consideration was a fair one; and that, if the property had not depreciated in value since the purchase was made, this bill would never have been filed. In 1 Perry on Trusts, § 467, the following language is used: "If trustees make an improper investment with the knowledge, assent, and acquiescence or at the request of the cestui que trust, they cannot be held to make good the loss, if one happens; but the cestui que trust to be affected by such consent or acquiescence must be sui juris, and capable of acting for themselves." See, also, 2 Beach on Trusts and Trustees, § 520, and cases cited; Poole v. Munday, 103 Mass. 174; 2 Perry on Trusts, §§ 849-852, 870. In Campau v. Van Dyke, 15 Mich. 371, Justice CHRISTIANCY, speaking for the court, said: "The same rule of diligence and reasonable time applies when property is sold by a trustee and purchased by or for him on his private account. The purchase is void, at the option of the cestui que trust; but he will be held to affirm it by acquiescence for an unreasonable length of time, and three years has been held unreasonable. Jennison v. Hapgood, 7 Pick. (Mass.) 1. See, also, Davis v. Cotten, 55 N. C. 430; Monroe v. Delevan, 26 Barb. (N. Y.) 16." In Quimby v. Uhl, 130 Mich. 198, it was said: "Where beneficiaries either expressly or impliedly assent to the action of their trustee in managing their property not in strict accord with the terms of the trust, they will be held to have acquiesced in such action. See authorities above cited; also 11 Am. & Eng. Enc. Law, p. 841; Heyn v. O'Hagen, 60 Mich. 150. A party cannot complain when he has consented. Barton v. Barton v. Gray, 57 Mich. 636." The case of Hammond v. Hopkins, 143 U. S. 224, is in many respects like the case at bar. In disposing of the case Chief Justice Fuller used the following language: "The main contention here is that the sale of May 10, 1864, should be set aside as to the purchases by the trustees through Chapman, on the ground of constructive, coupled with actual, fraud. Undoubtedly the doctrine is estab lished that a trustee cannot purchase or deal in the trust property for his own benefit or on his own behalf, directly or indirectly. But such a purchase is not absolutely void. It is only voidable, and, as it may be confirmed by the parties interested directly, so it may be by long acquiescence, or the absence of an election to avoid the conveyance within a reasonable time after the facts come to the knowledge of the cestui que trust. * * * "If the party, in view of all the facts of the case, has slept upon his rights, a court of chancery will not intervene; and in measuring laches there are two extremely important considerations always taken notice of by a court of chancery, which limit and narrow the measure of time which otherwise would be liberal. Where there has been no change of circumstances between the parties, and no change with reference to the condition and value of the property, a court of chancery will run very nearly, if not quite, up to the measure of the statute of limitations as applied in analogous cases in a court of law. But where there has been a change of circumstances with reference to the parties and the property, and still more where death has intervened, so that the mouth of one party is closed, and those who represent his interests are not in a predicament to avail of the explanations which he might have made, out of the charities of the law and in consideration of the fact that fraud is never to be presumed, but must always be proved and proved clearly, the courts limit very much, in such cases, the measure of time within which they will grant relief, because the presumption comes in aid of the dead man that he has gone to his account with a clear conscience." Apply these principles of law to the case at bar. When the first of these deeds was made the daughter was 30 years old, and the mother 60 years old. They were women of intelligence. When Mr. Dean proposed they should buy this property, after thinking the matter over a few days, they assented to it. There is no claim that anything was withheld from them except the consideration. They say they did not ask about the consideration, and were not told. The deeds were delivered to them, and they retained them in their possession. The daughter knew the property, and we cannot resist the inference that the mother also knew it. The daughter testified that before the deed was made she discussed with her mother the advisability of putting the money which was in the bank into this investment. They knew that one of the houses rented for $50 a month and the other for $45 a month. We have not overlooked the fact that both of them testified they relied wholly upon Mr. Dean's judgment, and had no knowledge of the consideration until after Mr. Dean's death. And yet Miss Skelding prepared a paper in her own handwriting as early as October, 1899, showing that the value put upon the two properties was $17,500. Harry J. Dean testified he had a talk with Mrs. Skelding, in which she told him that the cost of one house was $9,000 and the other $8,500, and that he also had a talk with Miss Skelding, and as the result of it credited his father's estate in the account of his mother as executrix by lots 33 and 35, $17,529.90. The final account of Mrs. Dean as executrix of her husband's estate was filed in October, 1901. It contained the above credit. It also contained nearly 50 items of $45 and $50 each for rent received from the Sibley property. On the back of this report is the following indorsement: "We the undersigned, sole beneficiaries by and under the last will and testament of Samuel M. Skelding, deceased, do hereby certify that we have examined the foregoing account, and find the same to be correct, and we do hereby consent to the allowance thereof, and ask the court to accept the same. "FANNIE E. SKELDING. The first item on the credit side was "Bought lots No. 33 and 35 Sibley, $17,529.90." It would seem that even a casual examination would discover this item. This final account was allowed, the trustee discharged, and the bond canceled December 3, 1901. We have not overlooked the claim of complainants that this indorsement was made at the request of Howard S. Dean without their knowing what the paper contained. The fact is, however, that this |