In re Miller

62 N.J. Eq. 764 | N.J. | 1901

The opinion of the court was delivered by

Collins, J.

There is in the mind of some members of this court great doubt of the power of the chancellor, as against the objections of owners sui juris, to make such an order as he has made in this case. We have found no inherent equitable jurisdiction to make it, and, indeed, the respondent urges no support for it other than “An act empowering executors and trustees, holding land and real estate in trust, to improve the same and erect buildings thereon,” approved April 9th, 1897. P. L. of 1897 p. 190. If the legislature has power, after the death of a testator, to supersede the provisions of his will, it is not clear that the statute cited applies to a case like that before us.

But we need not decide doubtful questions, for we are all agreed that, on the merits of the application, the order made was not justified. The main reasons for supporting it are that the testator’s so-called farm was originally wild land, in the midst of attractive mountain scenery, reclaimed with gregt difficulty and expense; that it is not valuable for agriculture, and, unless kept up by constant care, will relapse into a wilderness, and that the foundation referred to, which is very substantial, should in some way be made available to the trust. It is the opinion of the architect who has made the plans for the proposed rural inn that such an inn would be profitable if golf links and other improvements should be made, and that if the inn is built and occupied and the surrounding grounds are kept up, and the farm buildings and reservoir are utilized, the character of the vicinity is such that there will be a greater value in the property when the time fixed by the testator for its sale shall arrive than there otherwise would be. The trustee and one of his boarders and a gentleman living in the neighborhood share this opinion, which may be well founded, but it is plain that the matter must be largely one of experiment. It is conceded that, with the same external attractions, except such as would require further expenditure, a twenty-two roomed house of a most substantial character has not been capable of producing even $500 annual income. To build a cheaper house on the same foundation, even though more commodious and better arranged for the purpose of keeping summer boarders, in the hope of getting a much larger revenue, is to assume a greater risk than we are willing to authorize against the active opposition of most of the persons interested. Two of the four surviving children of the testator have appealed from the chancellor’s order. Another, while not formally appealing, is shown, by the proof, to be strongly opposed to the project. The only one of the heirs of the deceased child who is of age joins in appeal, and she, at least, has a vested remainder, and therefore that standing, additional to the other appellants, who are merely life tenants. The rights of mere life tenants, however, must not be overlooked, in the effort to preserve the corpus of the estate for those unknown persons who may, in the remote future, succeed to it. An investment of $28,000 will afford a considerable income. The possible rental of a, summer hotel, which may not prove successful^ is 'at best a doubtful substitute therefor.

The learned vice-chancellor guarded the order he advised by the condition that a tenant for five years can be procured who will give security for the payment of a rental which, undoubtedly, would be beneficial to the trust, but the very fact that he thought such a condition necessary shows that the venture must, at best, be a doubtful one. The rebate from the first year’s rent leaves the objectors not so well off as with a five per cent, investment, and should the enterprise prove a failure, the security which will be exacted will not be a very satisfactory alternative. At most, a revenue for five years only is secured, and if the rural inn should not prove as attractive as the architect thinks it will be, the prospects of future revenue will, of course, be correspondingly- diminished. The building would require to be kept in repair, with no income available therefor except that which experience has shown to be very meagre.

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.

It is urged that the chancellor’s order rests in discretion; but we think it comes within the class of appealable matters. It substantially affects equitable, if not legal, rights, and thus is a proper subject of appeal. Camden and Amboy Railroad Co. v. Stewart, 6 C. E. Gr. 484, 488.

The appellants are entitled to a reversal of the order appealed from and to an order denying the prayer of the trustee’s petition.

For reversal—The Chief-Justice, Dixon, Collins, Fort, Garretson, Hendrickson, Bogert, Adams, Vredenburgi-i, Yoorhees—10. For affirmance—None.