26 N.J. Eq. 44 | New York Court of Chancery | 1875
The bill in this cause is filed by Frank M. Babbitt, one of the children of William M. Babbitt, in behalf of himself and his mother, and brothers and sisters, eestuis que trust, under the will of Daniel Babbitt, deceased, late of Orange, in the county of Essex, against his father and Albert P. Condit, trustees under the will above mentioned. The complainant’s mother and brothers and sisters are, with the trustees, parties defendant to the suit. The bill alleges that Daniel Babbitt, who was the father of the defendant, William M. Babbitt, died in the year 1864; that by his last will and testament, which is dated April 25th, 1862, ho gave and devised to his son, William M. Babbitt, and Albert P. Condit, and to the survivor of them, and his heirs, the house and tract of land in Orange, then recently purchased by the testator of his said son, to have and to hold the same in trust to and for the following uses, that is to say: to the use of William M. Babbitt and Albert P. Condit, and the survivor of them, and his heirs, during the lifetime of William; and after his decease, to the use of his lawful children, as tenants in common, and their respective heirs and assigns, forever; the lawful issue of any deceased child being entitled to the share of his or her parent. And the freehold so devised to the trustees and the survivor of them, and his heirs, for and during the life of William, was thereby declared to be upon the special trust following, to wit, that they and the survivor of them should, during the said lifetime of William, take and receive the rents, issues and profits of the said real estate, and therewith make all necessary repairs, and pay all taxes and other requisite charges
The bill alleges that the complainant is of full age, and ■that he and his mother, as a member of his father’s family, and his brothers and sisters, all of whom, at the filing of the bill, were minors, either as members of the family, or as lawful children of William M. Babbitt, have each of them a present, as well as a prospective interest in the trust estate •; that the defendants, William M. Babbitt and Albert P. Condit, took upon themselves the discharge of the duties of the trusteeship under the will; that in September,. 1865, William M. Babbitt was indebted to the Orange National Bank in the sum of about $50,000, which, on the 1st of January, 1868, had increased to over $70,000, and at the latter date, his entire indebtedness was nearly or quite $85,000. The bill further alleges, that in order to raise money to pay part of his indebtedness, he fraudulently
Mr. Babbitt has ansAvered the bill. He denies the fraud charged against him, and claims that he has done his duty not only to the trust estate, but to his family; denies the charges of neglect and mismanagement contained in the bill; alleges that the proceedings to remove him are instigated by
Mr. Van Blarcom also testifies on this point. He says: “After the execution was placed in the sheriff’s hands, Col. Babbitt produced to me certain receipts for payments made to Mr. Townsend upon the bond and mortgage, and which were not endorsed on the bond, which payments amounted, in the aggregate, to $1155. He stated to me, that he intended to see Mr. Townsend, and make an arrangement with him by which the excess over the amount really due on said bond and mortgage should be paid by him, (Townsend,) to him, (Babbitt). As I now recollect, he, at the same time, said that he was very much pressed for money, and desired me to write to Mr. Townsend, and state to him, (Townsend,) that the property was amply sufficient to pay the. amount for which the decree had been taken, and that he, (Townsend,) would be perfectly safe in paying to him, (Babbitt,) the amount of said excess. I told Col. Babbitt, that I thought it would be unfair and improper to enter into any such arrangement, and the amount which had been paid was, by consent of Mr. Townsend, endorsed on said execution. Col. Babbitt said to me, that in his opinion, the property would not bring, at sheriffs sale, any more than the amount of the decree and costs, and that he proposed to have some friend bid upon it, and buy it in for him; stating, at the same time, that the property was worth much more than the amount of the de
Mr. Coult testifies that the mortgaged premises front on what is called Ridge road, which runs from Newton past Col. Babbitt’s residence; that property along that road is more valuable if divided into small lots, and he supposed that the mortgaged premises could have been so divided, and would have brought more if sold in that way. The premises appear to have had a frontage on that road of from seven hundred to eight hundred feet. No explanation of this transaction is attempted. It is, of itself, a most cogent reason for depriving the defendant of any further participation in the management of the trust estate.
The testimony presents other reasons of equal weight. Robert T. Johnson, Jr., a member of the law firm of Anderson and Johnson, of Newton, testifies to a conversation which took place, he says, between him and the defendant, about six weeks before the time when the witness gave his testimony. He says, that in that conversation the defendant told him that he had commenced proceedings against his co-trustee for the purpose of procuring the removal of the latter, and that there was no doubt but that his co-trustee would be removed, and that he, himself, would then have full control of the trust estate; that he would receive from his co-trustee, $18,000, and the interest thereon for about seven years; and that as soon as he received the money, he would repay to the witness the money which he was then desirous of borrowing of him, and for which he then applied ; and that out of the money he should so receive from his co-trustee, he intended to pay off and discharge all his debts. There is other testimony in the cause of the like character.
It remains to consider the propriety of directing a division of the income among the cestuis que trust. From whatever cause, whether improvidence, or mismanagement, or, as charged in the bill, disregard of duty, it is very clear, from the testimony, that the family have not received proper support from the income of the estate. Mr. Babbitt has manifestly been untrue to his trust in' this respect, also. The farm is worth, according to the testimony of witnesses competent to speak on the subject, from $35,000 to $50,000. It is capable of a high degree of cultivation, and, according to the evidence just referred to, may be made to yield a net annual income of $3000. Ordinarily prudent management would have secured to the defendant and his family a comfortable support, at least, from the productions of this large and valuable farm, and have spared the latter the privations of which they justly complain. ' However reluctant the court may be to interfere with the prerogative of a father of a family to judge as to the necessities of his children, it will, in such a case as this, where the father and the family are all beneficiaries of a trust fund intended for their common support, and where the father grossly fails to discharge his duty in dispensing the income for the purposes for which it was given, itself assume the distribution of the income, so as to secure to the beneficiaries a just and equitable participation therein. Oliver v. Oliver, 2 Green’s Ch. 368; Jacobus’ Executor v. Jacobus, 5 C. E. Green 49; Hamley v. Gilbert, 1 Jac. 354; Foley v. Parry, 5 Sim. 138 ; Hadow v. Hadow, 9 Sim. 438; Jubber v. Jubber, Ib. 503; Wardle v. Claxton, Ib. 524; Wetherell v. Wilson, 1 Keen 80; Longmore v. Elcum, 2 Y. & C. 363; Raikes v. Ward, 1 Hare 445 ; Jodrell v. Jodrell, 14 Beav. 413 ; Castle v. Castle, 1 DeG. & J. 352.