ANDREWS, J.

The right of the plaintiff to relief in this action depends primarily upon the validity of the trust in the will of Austin D. Moore, Sr., for the accumulation of the income of the share of the trust estate, held in trust under the will, for the use of the testator's son, Austin D. Moore, Jr., for life. If the direction for accumulation was void, the accumulated fund of $30,000, which the defendant Hegeman has accumulated out of the income of the share of Austin D. Moore, Jr., in pursuance of the direction in the will, belonged to Austin D. Moore, Jr., as his absolute property, and was subject to the claims of his creditors. ( Pray v. Hegeman, 92 N.Y. 508.) The defendants interposed as a defense and bar to the action a former judgment rendered January 24, 1874, in an action brought by Austin D. Moore, Jr., v. Hegeman, et al., which the defendants insist established the validity of the trust for the benefit of Austin D. Moore, Jr., both as to the trust term and the accumulations, and it is further insisted that the former judgment is res judicata between the parties to this action, and as to them determines the point now in controversy. This presents the only question on this appeal.

The general rule is well settled that the estoppel of a former judgment extends to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. ( Embury v. Conner, 3 Comst. 522; Dunham v. Bower, 77 N.Y. 76.) It is not necessary to the conclusiveness of a former judgment that issue should have been taken upon the precise point controverted in the second action. Whatever is necessarily implied in the former decision, is for the purpose of the estoppel deemed to have been actually decided. This is the principle upon which the malpractice cases, involving the right of a physician to recover for services, after a former judgment against him for negligence or want of skill in the employment for which compensation is claimed, and conversely the right of the patient after judgment against him for services, to maintain a subsequent action for malpractice, were decided. ( Gates v. Preston, 41 N.Y. 113; Blair v. Bartlett, 75 id. 150; Bellinger v. Craigue, 31 Barb. 534.) Conclusions of law or fact, which necessarily flow from a judgment, although not expressly found, are not incidental or collateral so as to remove them from the scope of the estoppel within the qualification of the general rule stated by the judges in their opinion in the Duchess of Kingston's Case (11 State Trials, 261). The cases where the qualification applies are well illustrated in Campbell v. Consalus ( 25 N.Y. 613) and Woodgate v. Fleet (44 id. 1).

The general purpose of the action in Moore v. Hegeman et al., was to recover that part of the estate of Austin D. Moore, Sr., and the accumulations thereof, held by the defendant Hegeman, as executor, for the benefit of the then plaintiff under the trust created by the will, upon the ground that the trust was void as "unlawfully suspending the power of alienation and otherwise," and that the plaintiff was entitled thereto as heir at law and next of kin of the testator. The plaintiff demanded judgment, declaring the trust to be void in its creation, and that he was the lawful owner of the securities in which the share and accumulations were invested, and directing the defendant Hegeman to assign and transfer to the plaintiff the "money and securities in which the share has been invested, and the accumulations thereof now in his hands as sole executor," etc. The defendants in their answers insisted upon the validity of the trust, and the court found and decided that the trust term was lawful and valid, and that the trust ought to be established and carried into effect, and also that it was the duty of the executor to hold the trust fund upon the trust declared in the will, and judgment was entered in conformity with the decision. The judgment though appealed from, was sustained and is now in full force.

It is undoubtedly true that the object of the plaintiff in bringing the action, was to procure a judgment annulling the entire trust as illegal and invalid, and that the reference in the complaint to the accumulations was not primarily with a view to procuring a judgment as to the validity of the provision for accumulation, independently of the validity of the trust as to the body of the share, but only as a part of the relief to which the plaintiff would be entitled, as incident to the main relief sought. But the plaintiff by asking larger relief than that to which he was entitled, was not precluded from obtaining any measure of relief less than that which he demanded in his complaint which was within the scope of the action. The first action was in general terms to recover the whole trust estate on the ground that the entire trust was void. The present action is to recover the accumulations, on the ground that the trust, though otherwise valid, was as to the accumulations void. If the plaintiff in the first action was entitled to a judgment establishing his right to the accumulations, then manifestly this action is for the same cause. It must be true as a general principle that subordinate rights or questions which are branches of a larger right or question put in issue, and which under the pleadings may be decided and as to which relief may be given in the action, although the principal or main relief is denied, are determined by a judgment on the merits, denying all relief. There are several tests which can be applied to determine whether the question of the validity of the provision for accumulation, was involved and determined in the first action. Would not an appellate court on appeal from the judgment in the first action, have been bound, if the point had been raised, to reverse it on the ground that it was erroneous in sustaining the entire trust; or could the plaintiff in the first action, after the judgment therein, have brought a new action to recover the accumulations, and would it not have been a good answer to the second action, that he was concluded by the first judgment; or if the plaintiff had recovered the accumulations in the first action, would the judgment have been reversed on the appeal of Hegeman, on the ground that that question was not within the issue. It is, we think, quite plain that the validity of the trust for accumulations was involved, and must be deemed to have been decided, unless the learned counsel for the appellants is correct in his further contention, that the first action was in legal effect an action to recover the specific securities in which both the share and the accumulations were mingled and invested, and that as the plaintiff was not entitled to recover the body of the share, he at most had a lien only on the securities to the extent of the accumulations, which could not be enforced in an action to recover the securities. It is insisted that the denial of relief in the first action was consistent with an admission of the plaintiff's title to the accumulations. But we are of opinion that there is no foundation for the premise, that the first action was in its nature, an action to recover specific personal property. It was an equitable action for equitable relief. The persons presumptively entitled under the terms of the will to the trust fund and accumulations on the death of Austin G. Moore, Jr., without issue, were made parties so as to bind them by the judgment. The question presented and decided was the validity of the trust. The securities were held by Hegeman, as executor, and the relief, in case the plaintiff succeeded in the action, either as to the share or the accumulations, or both, involved an accounting by the executor in respect to the trust fund, and the transfer of the securities as incident to the determination of the principal question.

It is also insisted by the learned counsel for the appellants that assuming that the right to the accumulations was involved and decided in the first action, the judgment is not res judicata in this action, for the reason that the former action was brought against Hegeman as an individual, and not as executor. That action was entitled " Austin D. Moore, Jr., v. Joseph Hegeman, Exr." etc., and the plaintiff averred in the complaint that the official character of the defendant stated in the title of the action was given for the purpose of identification. But the complaint set out the claim made by Hegeman as executor and trustee, and demanded judgment, among other things, that the securities in his hands as executor should be assigned and transferred to the plaintiff. Hegeman answered as executor, setting up in substance his title. The parties presumptively entitled under the will to the share of the plaintiff, Austin D. Moore, Jr., at his death, were brought in as defendants. The litigation exclusively related to the rights of the parties as affected by the trust, and those rights were declared by the judgment. Under these circumstances we are of opinion that the action must be regarded as one against Hegeman in his representative character. The judgment determined his right as executor, and was available to those beneficially interested in the estate.

The estoppel of the former judgment was available to Edward D. Moore, the son of Austin D. Moore, Jr., and his representatives, although he was not in esse when it was rendered, on the principle that his title, subsequently accrued, was represented by the other defendants, who were then presumptively entitled to the share by the same title which was subsequently vested in him. Clearly if Austin D. Moore, Jr., had died without issue, the other defendants, who in that event, under the contingent limitation in the will, would have been entitled to the share held in trust for Austin D. Moore, Jr., for life, would have been entitled to the benefit of the estoppel. Edward D. Moore, who in the event which has happened became entitled to the same interest, stands in the same position. (Story's Eq. Pl., § 144 et seq.; Monarque v. Monarque, 80 N.Y. 320.)

The defendant Hegeman on the trial of this action, formally waived the benefit of the estoppel. But this he could not do to the prejudice of the persons beneficially interested, who were before the court insisting upon it. The former judgment established that Hegeman stood in the relation of trustee to the beneficiaries of the trust, as well in respect of the accumulations as the body of the share, and so long as that judgment stands unreversed, he cannot divest himself of that character. It is true that the judgment did not specifically determine that the accumulations after the death of Austin D., would belong to his issue, or in case of his death without issue, to the other defendants, but denial of right in Austin, is equivalent to an affirmance of right in the remaindermen, and the decision of the one question necessarily determined the other. The principal counsel for the appellants substantially conceded on the argument, that the plaintiffs, as judgment creditors of Austin D., were bound by the same estoppel which bound their debtor. This is plainly so. ( Candee v. Lord, 2 Comst. 275; Curtis v. Leavitt, 15 N.Y. 51; Hall v. Stryker, 27 id. 596.)

We think the doctrine of res judicata applies in this case, and that the judgment of the court below should, therefore, be affirmed.

All concur.

Judgment affirmed.