Hedges v. Riker

5 Johns. Ch. 163 | New York Court of Chancery | 1821

The Chancellor.

The will of Mary M‘Crea bequeaths and devises to her executors in trust, for the use and benefit of her only child, the present plaintiff Mrs. Hedges, the whole income, rents, issues, and profits of her estate, real and personal, during her natural life, for her use and that of her children, and after her death to her children; and if she should die without issue, then the remainder over to be distributed according to the directions of the will. She then gives to her executors “ full power and authority to sell and dispose of so much of the real estate as may be necessary to fulfil the will.”

The bill states, that Mrs. Hedges has infant children living, and that a very considerable portion of the real estate consists of vacant lots in the city of Nem-York, which are wholly unproductive ; that she and her husband are not in circumstances to improve the vacant lots in a fit and proper manner, and that advantageous leases of the lots cannot be made by executors, for so precarious and uncertain a term as her life ; that great charges and expenses, arising from public taxes, and for assessments for public streets and improvements making near the said untenanted and unproductive lots, are continually accruing on account of said lots, which the plaintiffs have very slender means to pay, and to maintain themselves and their family; that the benevolent intentions of the testator will be defeated unless the executors are enabled to lease the same for the term of twenty-one years, or for some other fit and proper term of years, so as to enable the lessees to make propel and permanent improvements, yielding a reasonable rent. That the interest of the defendants is only a remote contingent remainder. The bill accordingly prays, that the executors may be enabled, with the consent of the plaintiffs, to lease the said vacant lots, for a term of years certain, not exceeding twenty-one years, reserving an annual rent, and that the lessees should be enabled to erect suitable buildings, and make other fit and convenient improvements, and upon agreement with the executors, that, at the expiration of the leases, the buildings to be erected thereon, should be valued by indifferent persons to be appointed by the Court, and the valuations to be paid to the tenants or their assigns or lawful representatives, by the person or persons entitled to the life estate in the premises, or by the persons then seized of the same in fee, or that the leases shall be renewed and extended for the further term of twenty one years, at the option of the persons entitled to the life estate, or the estate in fee therein, as the case may admit.

The defendants, who are infants, by their answers submit themselves and their rights to the judgment and protection of the Court. The executors admit the facts charged in the bill, and state that the vacant lots are forty-one in number, and that unless they are authorized to make long leases with covenants to pay for improvements, the lots will be wholly unproductive, and they submit themselves, also, to the judgment and protection of the Court.

I am induced to think, that the words in the will giving to the executors power “ to sell and dispose of so much of the real estate, as should be necessary to fulfil the will,” will authorize them to dispose of the vacant lots, by lease, according to the prayer of the bill, inasmuch as such a disposition is requisite to carry into effect the intentions of the will. A devise to the wife for life, with power to dispose of the estate, to the children, was held in Liefe v. Saltingstone, (1 Mod. 189.) to give a power to sell in fee, if the necessities of the daughter and her children should require it $ and the greater power includes the less, and will authorize, in a case of the like necessity, a more confined and limited exercise of the power. A lease for years is still a disposition of the estate, within the terms of the power; and without resorting to the power, the general jurisdiction of the Court, over the property of infants, is adequate to confer the authority. The Court stands, as Lord Nottingham observed, in loco parentis; and it js understood to be clearly settled, (3 Johns. Ch. Rep. 370.) that the Court may change the estate of infants from real into personal, and from personal into .renL whenever it deems such a proceeding most beneficial to the infant. It was declared by the Lords Commissioners, in Cecil v. Earl of Salisbury, (2 Vern. 224.) that the Court had often decreed building leases, for sixty years, of infants’ estates, when for their benefit.

I shall, accordingly, declare, that the interest of the plaintiffs and their issue, and the intentions of the will require, that the vacantlots in the pleadings mentioned should be leased in the manner mentioned in the bill; and that the lots could be thereby greatly and permanently increased in value, to the benefit not only of the plaintiff Mrs. Hedges and her children, but to the benefit of those defendants, who have a contingent remainder therein; and I shall order, that the executors and the survivors, and last survivor of them, whenever fit and proper opportunities shall offer, may, with the approbation and consent of the plaintiffs, cause the said vacant lots, and any, or all of them, to be leased for a term of years, not exceeding twenty-one years, reserving an annual rent, in and by such leases, and with permission contained therein, to allow the lessees to erect suitable buildings, and to make other fit and convenient improvements, as shall be agreed on, between them and the executors, and survivors, or survivor of them, and upon the further agreement, at the expiration of the leases, the buildings, to be erected thereon, shall be appraised by one or more persons, to be agreed upon by parties, then having the interest therein, or to be appointed under the direction of the Court, and the valuations paid to the tenants, or their lawful representatives, by the persons then entitled to the reversion, or upon such other terms, or conditions, as shall be agreed on, and deemed by the executors beneficial to the interest of the plaintiffs, and those entitled to the reversion, or remainder in fee. And further, that the costs of this suit be paid out of the trust estate aforesaid.

A difficulty has been suggested, as to infants who may be born after the decree, and how they are to be bound. To meet it, liberty may be reserved in the decree, if the parties please, to file one or more supplemental bills, from time to time, as new parties may arise, or become interested, so as to enable the tenants to become parties, and to make any infants that may be hereafter born also parties, should the course of events render any such measures necessary. This liberty is granted without giving any opinion as to its neces* sity, or without expressing any intimation, that the leases granted under the authority of this decree, would not be valid against any subsequently born issue.

Decree accordingly.