67 N.J. Eq. 431 | New York Court of Chancery | 1904
The petitioner having failed in a former application to this court (In re Miller, 62 N. J. Eq. (17 Dick.) 764) to obtain an order permitting him to expend trust moneys in his hands for the erection of a building in the place of one which was destroyed by fire, now comes with a new petition, presenting a plan for the erection of a far less expensive building, involving therefor the expenditure of a smaller amount of the trust funds. The report of the former proceeding in this court and in the court of errors and appeals sets forth the will of Ezra Miller, deceased, creating the trust and all the other facts necessary to be considered for the determination of this present application,
1. The opinion of the court of errors and appeals in the former case shows that some members of that court entertained “great doubt of the power of the chancellor as against the objection of owners sui juris to make such an order” as had been made by the court of chancery in that case. These doubts so fill my mind that if it were necessary for me to solve them I strongly incline to think that they would not be solved in favor of this petitioner.-
2. The situation of the parties remains the same. The petitioner, having only one-fifth share as life tenant in the income of the property, is met by the united opposition of all his co-life tenants. While the statute under which this petition is filed (P. L. of 1897 p. 190) contemplates that the interests of remaindermen shall be scrupulously guarded, there seem to be strong grounds for holding that its entire beneficial purpose is confined to the case of the life tenants. It is the procurement of an adequate income from real estate by the erection, repair or improvement of buildings for the benefit of the parties who are entitled to this income that this statute seems to have in view. The united opposition of these defendants and their co-life tenants who- side with them to have this experiment of erecting a new building -tried for their benefit is certainly entitled to careful consideration from this court.
3. While I do not intend to discuss at length the various doubtful questions which an attempt to apply this statute to this particular case manifestly suggests, I think there is great force in the contention for the defendants that the petition does not present a ease within the words of the statute under any fair and reasonable construction which can be placed upon these words. It is difficult to see how the statute covers this case unless the making of “additions” is to be construed so as to include the erection of additional buildings. The statute seems to contemplate the making of additions, repairs and improvements to existing buildings and the erection of new buildings
The disadvantageous condition which the statute seems to recognize is that of land not unoccupied but already occupied by a building which yields an inadequate rent when the making of additions, repairs and improvements to such building or the substitution of an entirely new budding in place thereof would bring about an increase of rental.
4. In view of the scope of the argument for the petitioner it is worth while to point out that the only jurisdiction which can be exercised on this petition is the jurisdiction conferred by this statute. If this court, under the facts set forth, or under any other facts, has jurisdiction to permit the petitioner to take $6,000 of the trust fund in his hands and expend it upon a building on the land which he also holds in trust apart,from this particular statute, such jurisdiction can only be invoked by a bill.
5. The rule laid down by the court of errors and appeals (at p. 768) is that “where the proof leaves it doubtful that an-improvement proposed under the act involved in this case will be beneficial to the trust, it should not receive judicial sanction.”
Applying this perfectly plain rule to the’ petitioner’s plan,
I shall not, however, go into the details of this new experiment which the petitioner proposes to try by the expenditure of the trust funds in his hands. After a careful consideration of all the testimony, not only grave doubts as to the wisdom and prudence of this expenditure remain in my mind, but I may say that I cannot resist the conviction that the probabilities strongly favor the failure of the experiment rather than of its success.
The prayer of the petition will be denied.