Opinion of the Court, per FINCH, J. the executrix under it. The relief asked was a construction of the will in the respects suggested and in any others which might be raised by the answers or properly brought before the court. The deceased left eleven children, six of whom were minors at his death, for whom a guardian ad litem was appointed, the adults appearing by counsel of their own. None of the answers raised any new questions, or suggested any difficulties to be solved beyond those stated in the complaint. Upon these pleadings the case went to trial. What then occurred we do not know, for this appeal stands alone upon the judgment record, no case having been made, and we are bound to assume that the only questions tried and decided were those raised by the pleadings. In October, 1869, or almost twenty years ago, judgment was rendered. In that judgment there is no trace of any determination founded upon a claim or allegation at any time made, that the trust was void. Outside of the formal facts the principal further finding was that, of the five persons named as executors and executrix of the will, Mrs. Rogers alone qualified. As she was beneficiary, to some extent, in the trust, the question raised was whether she could act also as trustee, and could sell and convey the property and appropriate not only income but principal. The court adjudged that she could, but since she was one of the beneficiaries took upon itself the execution of the trust, so far as her discretion was concerned, and sent it to a referee to ascertain and report what had been done with the personal estate and income received; what sum was needed for the widow and the support and education of the minors; and what was the net value of the estate and its income, and what part or parts could be sold or mortgaged. The judgment also authorized any of the parties upon the foot of the decree to apply for further instructions. All this assumed, as did the pleadings, the validity of the trusts, and determined only the authority of the executrix in the emergency which had occurred. The referee reported, and upon the filing of his report, and after hearing all parties, the court ordered that the executrix borrow, upon mortgage, $15,000 of the Mutual Opinion of the Court, per FINCH, J. Life Insurance Company of New York, and directed how much of it annually should be applied to the use of the widow, and how much to the support of the minors and their educa tion. The present appellant, George W. Rogers, now of full age, was then one of the minors, and reaped his share of the benefit of the loan. This order was made in February, 1870. In August 1871, under another order of the court, the executrix borrowed, on bond and mortgage, of Fernando Yznaga $21,000, with which the previous loan was paid off and the surplus applied to the use of widow and minors as directed. In May 1872, she borrowed, under a similar order, $15,000 of Elizabeth Rapelye. In October 1873, she presented a further petition, showing that the real estate by reason of railroad improvements had increased in value $50,000, or more than the amount of the incumbrances; that taxes, interest, legal expenses, etc., added to medical bills for sickness in the family and the support and education of the minors, made it necessary to borrow an additional $10,000. A reference was ordered to ascertain the facts. Upon the coming in of the report and upon a stipulation signed by all the adult children, at that time eight in number, leaving but three minors, of whom George W. Rogers was one, and had reached the age of nineteen years, an order was made permitting such new loan. The record does not show whether, it was obtained, though it probably was. Two years later, or in 1875, George W. Rogers became of full age. For four years thereafter, or until March 1879, he appears to have remained silent, but at that date an order was entered substituting, as his attorney in the case, Cyrus K. Corliss, in the room of the guardian ad litem, and thereupon, ten years after the decision was rendered, an undated paper was filed, signed by the new attorney, containing exceptions to the findings of the trial judge. This paper is the first trace of anything like an objection or exception along the line of the proceedings; and upon its basis it is now sought to overthrow and invalidate the trust, to break down with it the power of sale, and sweep away utterly about $50,000 of loans upon which this family have lived and this appellant has been Opinion of the Court, per FINCH, J. supported and educated. His adversary raises no question as to the regularity of the exceptions filed, but looks with sufficient cheerfulness upon the effort, to sign a stipulation waiving any undertaking on appeal to this court or any deposit of money in lieu thereof. Under these circumstances, I think it our duty to refuse to consider any question beyond the single one raised and decided by the Special Term, and hold the appellant to a rigid and strict observance of the rules of law. All his exceptions, save one, should be disregarded, because too general, and taken to the whole of the conclusions of law specified by their number, some portions of which, at least, were beyond question correct, and what portions it was intended specifically to assail it is impossible to say; and none of them can raise a question not involved in the case, but they must all stand upon the assumption that the trust was valid in its creation, leaving open only the inquiry whether it could be adininistered by Mrs. Rogers under the emergency which had arisen. Two questions, and only two, are, therefore, presented by this appeal: First, whether Mrs. Rogers, being beneficiary, could also act as trustee; and second, whether the orders directing the mortgages were legal and valid. The will did not attempt to unite in the same person the office of trustee and the interest of beneficiary. Its terms associate with the executrix four other persons as executors and to the five, or such of them as should qualify, the residue was given in trust. The widow could act freely as to the beneficiaries other than herself, and as to herself four remained who could exercise the control and judgment improper for her. Trusts thus constituted are quite common, and although the trustees other than the beneficiary may die or decline to act, the court has power to supply their place, or, if need be, take upon itself the execution of the trust, so far as it ought not to be executed by the trustee who is also beneficiary. In this case the emergency happened. The four executors refused to qualify, and Mrs. Rogers became sole executrix, and that raised the question upon which the Special Term passed, not Opinion of the Court, per FINCH, J. of the validity of the trust in its creation, but how it could or should be executed in view of the emergency which had arisen. The court substituted its own discretion for that of the trustee. Through its own officers it inquired into the facts, and dictated in detail all that should be done. It might have appointed a new trustee, but having itself exercised all the discretion reposed anywhere, it might direct the mere formal act of giving the mortgage and distributing the money in the proportions dictated to Mrs. Rogers, for the amount going to her was fixed, and that set apart for the minors she could properly apply. We discover no error in the ruling in this respect. The appellant further objects that there was no power under the will to mortgage the property, but, if anything, only a power to sell. It is to be observed that neither power was expressly given, but the whole legal estate was vested in the trustee, who might sell or mortgage it, though not in contravention of the trust. The mortgages directed were not in contravention of the trust, but in accordance with it, and to accomplish its performance. The will directed the income of the estate to be paid to the wife, so far as was necessary, for the support of herself and testator's mother, and the maintenance and education of the minors, and, if the whole income was insufficient, to apply so much of the principal as should be needed to make up the deficiency. The personal estate was small and swiftly exhausted. Resort to the real estate required either a sale or a mortgage, and the latter was wisely chosen, since the land was steadily increasing in value, and, by the choice, the benefit of that increase was preserved to those ultimately entitled in remainder. In all this we find no error, but a prompt appeal by the widow, in the emergency which arose, to the ail and direction of the court, and a series of orders which were lawfully made and both prudent and just. The judgment and orders should be affirmed, with costs. All concur. Ordered accordingly. Statement of case. CYRUS W. LODER, Respondent, v. WILLIAM M. WHELPLEY Where the probate of a will is contested, legatees under it are not competent The provision of the Code of Civil Procedure (§ 834), prohibiting a The fact, therefore, that a physician is called as a witness by an executor An attorney, in receiving the directions or instructions of one intending to At the close of the evidence before the surrogate in proceedings for (Argued October 1, 1888; decided November 27, 1888.) APPEALS from judgment of the General Term of the Supreme Court in the second judicial department, entered upon an ordered made February 10, 1886, which affirmed a decree of the surrogate of Westchester county for the probate of a paper purporting to be the will of Eva J. Banks, deceased. 111 239 113 78 111 239 140 285 111 239 146 137 |