Moses Rathbun et ux. versus George Colton et al., 15 Pick. 471

Per Curiam. The Court are inclined to the opinion, that the plaintiff, Roxana, is not one of the parties for whose necessities a sale is to be made by virtue of the will, but that this privilege, is confined to the sons and the daughter of the testator. Upon a sale of the land, on account of the necessities of one or more of the testator’s children, the relief to the widow of a son is incidental.

In such case she is undoubtedly enti tied, under the provisions of the will, to an account and to protection ; and the testator having given no particular directions for investing the proceeds, she might apply to this Court to prescribe the mode of investment. The Court were also of opinion, upon all the facts in the case, (some of which are not above stated,) that it was not expedient to order a sale of the real estate in question. The case was continued for advisement in respect to other questions, and at a subsequent term the opinion of the Court was delivered by Wilde J.

The subject of the sale prayed for by the plaintiffs, was considered at a former term, and the part of the bill relating to that subject was then dismissed. The remaining questions raised by the exceptions to the report of the master were continued for advisement, and have been since considered. In delivering the opinion of the Court I shall fiist notice the exceptions to the master’s report taken by the plaintiffs, passing over those relating to the subject of sale, and others which have been waived.

The first in order is founded on a supposed collusion between the trustee and the lessee, to whom the trust estate has been let for a term of years not yet expired. There is, how'ever, no evidence of any such collusion, nor any circumstance disclosed in the evidence which tends to impeach the good faith of the trustee in this, or any other transaction, relating to the trust. No attempt has been made to show that a higher rent could and ought to have been procured, but it is said that there is no evidence that the transaction was bond fide. It is sufficient that there is no evidence to the contrary.

It is for the plaintiffs to make good their charge ; every transaction is presumed io be bona fide until the contrary appears. The 6th exception relates to a sum of money received by the trustee, and credited in the account rendered, for damages awarded on laying out a road over the trust estate, and the plaintiffs claim a share of this sum ; but by the will they are only entitled to a share of the rents, and no part of the estate, which is to be held by the trustee subject to the trusts.

The damages awarded must follow the disposition of the estate ; but they are rightly credited by the trustee as they are chargeable with the trustee’s expenses, compensation, &c. So far as these expenses &c. are not chargeable on the rents and profits, they are to be charged to the estate. It is for the interest of the plaintiffs, that the whole expenses of the trust should be charged to the estate, rather than to the rents and profits, and therefore there is clearly no ground for this exception. We think, also, that there is no ground for the 7th exception.

It appears by the master’s report, that before the repairs were made, the buildings on the premises were in a very dilapidated state, rendering very expensive repairs essential to their comfortable and profitable occupation ■; that the trustee being nearly destitute of funds, and being unwilling to incur the hazard of making repairs, concluded to make sale of the whole estate, believing that the'necessities of Harvey Bates, one of the cestui que trusts, were such as would have author •ized such a sale.

Nevertheless he abandoned this project, on the remonstrance of some of the cestui que trusts, who peti tioned the judge of probate to remove him from his office, or restrain him from going on with the sale ; and being admonished by the judge of probate, although no decree was made, that he would be removed, if he persisted in attempting to make the sale.1 The plaintiffs’ counsel contend, that it was the duty of the trustee to persist in the sale, and if mea ne, to appeal from any decree of the judge of probate to this Court, as the supreme court of probate.

Probably sucn a course, if pursued, would have been unavailing, but it was not the duty of the trustee to disregard the admonition of the judge of probate, or to appeal from his judgment, unless he vvas requested so to do by some one having an interest in the trust estate. We think the trustee acted in good faith, and that he did right, under the circumstances reported, in abandoning, as he did, the intended sale, and in proceeding to make the necessary repairs. The 8th exception relates to the allowance of sundry charges for repairs, which the plaintiffs contend ought not to have been allowed.

The principle upon which these allowances were made, we think, is correct. Regard should be had to the probable duration of the trust, in determining whether temporary and slight, or more permanent and thorough repairs, should be made. Considering the ages of the cestui que trusts, and the use to be made of the buildings, we are of opinion, that the charges for repairs, as allowed by the master, are reasonable, and such as the trustee had a right to make. The 9th exception refers to the charges for repairs made since the filing of the bill.

It is objected, that after a prayer for an injunction and the admonition of one of the justices of this Court to the trustee, that he must proceed at his own risk, no allowance for repairs ought to have been made, and that it was the duty of the trustee to stay proceedings until the decision of the case. But this would be giving to the admonition of the Court, which was a mere caution, the force and effect of an injunction; which cannot be allowed. The Court did not undertake to decide or direct as to the necessity or propriety of the repairs about to be made. This point was left open to be decided on its merits.

The 15th exception is disallowed, for reasons which will be stated hereafter in considering one of the exceptions on the part of the trustee. The remaining exceptions taken by the plaintiffs relate to the allowance made by the master to the trustee as compensation for bis services ; as to .which, we think the allowance made by the master is reasonable, and that there is no objection in principle, or by the practice of this Court, to the allowance of commissions in connexion with an allowance of specific charges for services, provided the whole does not exceed a just compensation.

In which case the allowance of commissions is to be considered in lieu of all the remaining services not specifically charged. With regard to that part of the report in which the master allows the trustee to prefer a further account for services in superintending the repairs, we think there does not appear any good cause for opening again the subject of compensation. If the compensation allowed by the master was insufficient, those services ought to have been proved, so that the whole subject of compensation might have been passed upon, and the facts reported by the master.

Upon the evidence submitted, we are of opinion that the allowance made by the master is a sufficient compensation. I will in the next place consider, the exceptions taken by the trustee, the first of which involves a question of considerable importance, and which is not free from doubt. The master reports, that the rent of the trust estate was enhanced to the amount of $75 annually, in consequence of the improvements, the charges for which were objected to by the plaintiffs and disallowed by the master; and that thereupon the trustee contended that he ought not to be held to account for this enhanced rent.

The master reports, that the trustee’s claim is perfectly just, and that at first he thought the plaintiffs might be put to their election, either to allow the charges for the improvements, or be deprived of the increased rent obtained by reason of them ; but not finding any authority for such a decision, he finally decided to the contrary. After fully considering the subject, it seems to us that the master’s first thought is the best.

The question is not, whether the trustee has a right to make any charge for these improvements, but whether the plaintiffs are entitled to receive any benefit from them, they refusing to contribute their share towards the expenses. There is certainly no equity in such a claim, and we are not aware of any precedent or principle which will authorize its allowance.

Supposing that these improve ments had been made by the tenant without the consent of the trustee, no additional rent could have been demandable on that account; and the same principle applies to the present case, in which the improvements were made with the consent of the trustee. The plaintiffs have no interest in the improve ments, but are only entitled to their share of the rents which would have been received had no improvements been made.

If the trustee had erected a new building at his own expense, which was not a fixture or so connected with the soil as that it could not be removed without prejudice, he would have a right, at any time before the termination of the trust, to pull down and remove it; and in the mean time would only be ac countable for a ground rent. Such would be the right of a tenant, and the Court say, in the case of Taylor v. Townsend, 8 Mass.

R. 416, that a fortiori the. principle ought to apply to a mortgagee in possession, and, as we think, to any trustee , unless there be something in the terms or nature of the trust to restrain him. The reason why a trustee cannot erect new buildings, or make alterations or improvements, at the expense of the cestui que trust, is, because his interests may thereby be prejudiced ; a reason which cannot apply to the question under consideration.

We are therefore of opinion, that the increased rent, as estimated by the master, ought to be deducted from the amount with which the trustee stands charged, unless the plaintiffs should elect to allow the charges for the improvements ; thereby entitling themselves to the full rent. The next exception by the trustee depends on a clause m the will, the construction of which is not very clear.

This clause is as follows : “ And I further will and direct, that if either or all my children should become necessitous, and it should be adjudged by my said trustees more for the benefit of my said children to sell all or part of my said estate, for the benefit of either or all of my said children, they are hereby authorized to sell all or part thereof, and appropriate all or part of the proceeds thereof in proportions above stated, to the support of my said children, their heirs or wives.” The construction given to this clause by the master is, that whenever any sale of the trust estate should be made, the proceeds should be divided in the proportions, stated in regard to the rents and profits, and that no one can take more than his proportion upon such a dividend ; that the principal ought not to be paid out any faster than the necessities of those in terested require; and that it ought to be placed at interest and the interest be paid annually in lieu of the rents and profits.

This undoubtedly is the only correct construction that can be given to the will, supposing that it were necessary to sell the whole estate. But we do not think, that the same construction ought to be applied to a partial sale like the present.

Whatever may be the literal construction of the clause in question, the general meaning seems to be, that no sale of the trust estate is to be made, but for the purpose of relieving the necessities of one or more of the cestui que trusts; and that no larger sale is to be allowed than such necessities may require, unless, in the opinion of the trustee, such larger sale would be advantageous to all parties beneficially interested, or unless a sale strictly limited should be impracticable.

It is true the trustee is directed to appropriate the proceeds of sale to the support of the testator’s children, their heirs and wives, in certain proportions, but this is to be understood with the implied condition, that all should need support. It clearly was not the intention of the testator, that such appropriation should be made in favor of those who were otherwise sufficiently provided for. Probably the intention of this part of the will was merely to direct in what proportions, and to what extent, the cestui que trusts were severally entitled to support.

We are therefore of opinion, that this is not a case in which the proceeds of sale are to be divided and appropriated as directed in the will. As a literal construction of this clause is inadmissible, being inconsistent with the intention of the testator as manifested in other parts of the will, we must adopt a reasonable construction, and such as will best effectuate the objects of the trust, and best promote the interests of all concerned.

Now we can see no reason for compelling the trustee to sell any more of the trust estate than may be required to rel'eve the necessities of one or more of the cestui que trusts, as the case may be.

Suppose that the necessitous condition of Harvey Bates had been such as to require the whole <~ f his share in the estate to be sold and appropriated to his support, would the trustee be obliged to sell the whole estate without regard to the interests of the other cestui que trusts 9 Nothing but the most clear and unambiguous direction in the will would justify such a course to the prejudice of the other parties interested. By the will the trustee is to sell all or a part of the estate, as majr be most for the benefit of all concerned. It is a matter left to his discretion.

Having decided on a sale, he was bound, we think, to relieve the necessities ol Harvey Bates to an extent not exceeding his share. The amount paid for that purpose is accordingly allowed, and the surplus of the proceeds of sale is to be held for the purpose of discharging future expenses, and in the mean time the trustee is to be charged with interest, this surplus being a substitute for the estate sold and being subject to the same trusts.