Estate of Freeman

Opinion by Mr. Justice Mitchell, The proposed lease is within the words of the testator’s grant of power to the trustee to lease the property from time to time at its own discretion, but considering the length of the proposed term in relation to the probabilities of life of the testator’s children now living, the trustee and the court below preferred to treat the lease as practically amounting to a sale, and therefore coming within the testator’s restriction requiring the consent of all the cestuis que trustent of age and accessible. In so doing the trustee and the court displayed commendable regard for the equitable rights of the heirs, as well as for the security of the title to be passed to the lessee. No reasonable objection can be made to such action. [408] Treating the lease on the basis of a sale, the testamentary power of the trustee cannot be exercised for want of the unanimous consent of the heirs which the will required as a condition precedent, and resort was therefore had to the orphans’ court under the Act of April 18,1858, P. L. 503. The case falls within the express words of section 2 authorizing the court to decree a sale where property is held in trust and “ one or more persons required to consent .... unreasonably withhold consent.” The constitutional objections to this statute raised by the appellants are not tenable. As applied to the case, the statute is not the divesting of estates of parties sui juris without their consent, but the regulation of joint rights where the joint owners cannot agree in the control and disposition of the property. It defeats or interferes with the individual rights of property no differently and no further than any other mode of changing their rights to severalty or regulating the management until that is done. The right of a joint owner is to an undivided interest in every portion of the joint property, but this right is accompanied with the ancient incident of partition. Each owner has the right to enlarge his estate to severalty, though in so doing he must reduce its corpus so that the other .owners may also have the like privilege. The mode of doing this has always been within legislative control, and this statute does no more. There is no question even of retroactive application of the law, as the act was in force for more than twenty years before the death of the testator, who as an experienced member of the Philadelphia bar must be assumed to have written his will with the knowledge that the powers of leasing and sale which he gave his trustee could be supplemented if occasion arose, by the powers of the orphans’ court. The further argument that the testator ohly intended short leases, or at most those of ordinary length, would have much force if the trustee were acting on its own discretion under the testamentary authority to lease from time to time, but as already said the trustee and the court have treated the case as practically involving a sale, and if the requisite steps for a valid sale have been taken they must certainly include the lesser act of leasing even for so long a term as fifty years. Such leasing does not contravene any express direction of the testator, but only supplements the authority he gave by a resort to the power [409] of the court to meet circumstances not anticipated and therefore not provided for by him. The only remaining question whether the court was right in deciding that the consent of appellants was unreasonably withheld, cannot be seriously contested. The main value of the property is in the land. The buildings are only a survival of the private residences to which the neighborhood was originally devoted, temporarily adapted for business, but falling far short of the kind of improvement that the present uses of the neighborhood demand. The rental of the property in its present condition is an inadequate percentage on its assessed value for taxation, and the latter is constantly increasing. It is admitted that the proposed lease will at once double the net revenue from the property, -with an increase in the future, in actual amount as well as in indemnity against the increase in taxation; and the property will revert at the end of the term, improved by the erection of a building adapted to its most modern needs, at a cost, entirely defrayed by the lessee, of more than one half the amount of the highest present valuation of the whole property. This plan has the active support of the owners of five sixths of the property, and has been approved by the judgment of the trustee and the court below. The decree is framed with great care to secure every possible interest of the cestuis que trustent, and we are of opinion that it was not only within the jurisdiction of the court, but also that the power was properly exercised. Decree affirmed.