Greason v. . Keteltas ( 1858 )

It is not necessary, to a correct determination of this case, to define with precision the nature and quantity of the interest which the trustees took under the will. Assuming it to be a contingent determinable estate, to be determined upon the death of one or all of the children, as claimed by the counsel for the defendants, it by no means follows that the lease and the covenants contained in it were not valid and binding upon the trustees. They were vested with the legal estate at least during the lives of the children of the testator. This was a greater interest than any estate for years, however long. At law, therefore, the leases being justified by the quantity of the estate in the lessors, they cannot be impeached. Nevertheless, they are subject to the control of a court of equity. But in exercising this control the court is not restricted to any arbitrary rules, but will merely take care that what the trustees do in regard to the estate shall be reasonable. (1 Platt onLeases, 345.) In ascertaining what is reasonable, a reference to the circumstances of each case is indispensable. The nature of the property and the custom of the country must also be taken into consideration. (Hill on Trustees, 428.)

In this case the testator must have contemplated, and the probabilities were, that the property would remain under the control of the trustees for a long time. A considerable portion of the property which passed to them by the will consisted of vacant lots in the city of New-York. The trustees had no power to sell, but were required, "out of the rents, issues and profits thereof, to uphold, support, amend and repair all and singular his real estate with all needful, necessary amendments and repairs and alterations, and pay, satisfy and discharge all costs, expenses and charges, and other impositions, taxes and assessments," c., and the residue was to be paid over to his children in certain prescribed proportions. These vacant lots could only be made productive by leasing them. It was the only possible method by which any rents, issues and profits could be realized from this portion of the estate. But they could not be rented to remain vacant lots. In that condition they would be of no use to a tenant, and no one would hire them. It was therefore necessary, in order to put them in a condition that they might be leased and rents received from them, that they should be improved, and the necessary buildings put upon them. The trustees, could we find no express powers conferred upon them in the terms "needful amendments and alterations," contained in the will, would be vested by implication with the power not only to lease the premises, but to make them capable of being leased by placing upon them such reasonable improvements as were necessary for that purpose.

"Trustees who are invested with the general powers of management, will be justified in laying out money in the repairs and improvements of the property, such as draining, buildingfarm houses, c., manuring, and other similar works." (Hill onTrustees, 429, 571; Bowers v. Earl of Strathmere, 8 Lond.Jur., 92.) And if they would be justified in laying out money directly for that purpose, they of course would have the power to make an arrangement with the tenant by which buildings put up by him should be paid for at the end of the term.

In this case, I think the terms of the will indicate plainly that it was the design of the testator to confer the power to improve the real estate. All needful amendments, repairs and alterations, are terms, when applied to real estate, and especially vacant city lots, which would embrace improvements in the form of necessary buildings to make the lots tenantable. The expenses incurred in making these amendments and improvements were to be met and paid with the rents, issues and profits of the real estate. But as no rents could be obtained until it was leased, and as it could not be leased until it was improved, or unless some provision was made for its improvement, the only method which the trustees had for improving the lots and making them productive was, by granting just such leases, with just stipulations for improvements, as were made in this case. Their acts, therefore, it seems to me, in any view we may take of them, were justifiable. They were justified by the provisions and directions of the will; they were justified by the implied powers which attend the general power of management; they were justified by the general usage and custom of owners of real estate similarly situated. Indeed, it seems to me, if the trustees had allowed the property for forty years, the time which has now elapsed since the death of the testator, to have remained vacant and unproductive, subject annually to the enormous taxes and assessments to which property in New-York is subject, they might well have been chargeable with gross neglect of the duties which they had assumed in accepting the trust. They would have been more culpable than the unprofitable servant, who hid the talent intrusted to him in a napkin, for in that case no expense would be incurred in its preservation.

It is said that the stipulation to renew the lease was not valid. I think it is of no importance whether it be or not. The stipulation to renew was in the alternative, at the option of the lessors. The fact that one part of the alternative was not binding upon the trustees, would constitute no good reason why they should be relieved from performing that which is valid and binding.

Upon the whole, I am satisfied that the judgment of the court below was right, and should be affirmed.

JOHNSON, Ch. J., did not sit in the case; all the other judges concurring,

Judgment affirmed.