Lueft v. Lueft

Siebegkee, J-. Under tbe provisions of tbe will it is unquestioned that tbe executors took tbe residue of tbe estate for tbe purpose of applying tbe net income thereof, if necessary, to tbe care and maintenance, during bis life, of testator’s son William, and of bis family, if be bad any. In their administration of tbe trust, for tbe purposes and in tbe manner set out in tbe statement of facts, they mortgaged tbe real estate for $15,000 to pay in part for tbe improvements made-on it. Tbe inquiry is whether tbe executors bad power so to mortgage tbe real estate under tbe powers conferred by tbe will. Tbe chief difficulty arises in determining whether tbe power to make disposition of tbe real estate, given in tbe will, included tbe power to mortgage it for tbe purposes of administering tbe trust witb respect to tbe care and maintenance of tbe son William. Tbe decisions on tbe subject of [540] the right of trustees to mortgage real estate under a simple power of sale are not harmonious. Lardner v. Williams, 98 Wis. 514, 74 N. W. 346. The weight of authority seems to be that a mere power to sell, such as that of a power of attorney to sell real estate, confers no power to mortgage. 1 Tones, Mortg. § 129, and cases cited; 2 Washburn, Real Prop. § 1690, and note. But when such powers, coupled with charges upon the estate, are conferred by. wills or other instruments, and the executors are intrusted with its management to carry out and discharge such obligations, no such limitation is implied. Under such circumstances the extent of the power conferred by such words as “to sell,” “convey,” and their equivalents is to be ascertained from the intention of the donor of the power in the light of the purposes and objects of the trust as expressed in the grant. In the construction of powers conferred for such objects we again find the decisions upon the subject irreconcilable. Some of the courts have adopted the strict construction, and hold that no power to mortgage is implied by the language granting power to sell, convey, and dispose of the real estate, for the reason that such terms negative an intent of the donor to authorize mortgaging the estate. Of this class are the following cases: Bloomer v. Waldron, 3 Hill, 361; Potter v. Hodgman, 81 App. Div. 233; Price v. Courtney, 87 Mo. 387; Parkhurst v. Trumbull, 130 Mich. 408, 90 N. W. 25; Greene v. Greene, 19 R. I. 619, 35 Atl. 1042. Other courts .adopt a liberal interpretation of such terms when employed in granting such powers, and have construed them as expressly including the authority to mortgage. This rule is followed in Pennsylvania and other jurisdictions. Zane v. Kennedy, 73 Pa. St. 182; McCreary v. Bomberger, 151 Pa. St. 323, 24 Atl. 1066; Jackson v. Everett, 3 Tenn. Cas. 811; Steifel v. Clark, 9 Baxt. 466; Rutherford L. & I. Co. v. Sanntrock, 60 N. J. Eq. 471, 46 Atl. 648; Mills v. Banks, 3 P. Wms. 1; Ball v. Harris, 4 Myl. & C. 264; 4 Kent, Comm. 345. [541] Tbis court in tbe case of Lardner v. Williams, 98 Wis.. 514, treating of tbe question here involved, adopted tbe rule followed in many jurisdictions of looking into tbe instrument creating tbe trust and of giving effect to tbe manifest intent of tbe donor as shown by tbe light of tbe surrounding circumstances. Tbe principle of tbis rule is that if tbe purpose of' tbe trust can be answered and best accomplished by mortgaging tbe estate, and if tbis is not in violation of tbe intention of tbe donor, then tbis method of administration is proper and within tbe grant of tbe power. Such construction was-followed in Starr v. Moulton, 97 Ill. 525; Faulk v. Dashiell, 62 TeX. 642; Loebenthal v. Raleigh, 36 N. J. Eq. 169; Waterman v. Baldwin, 68 Iowa, 255, 26 N. W. 435; Kent v. Morrison, 153 Mass. 137, 26 N. E. 427. See, also, 4 Kent, Comm. 345, and cases cited; 1 Perry, Trusts (5th ed.) § 768. Tbe will clearly declares tbe object of tbe trust conferred on tbe executors. They were to employ tbe residue of tbe estate transferred to them so that bis son William should be-cared for and maintained in tbe manner in which be bad theretofore received “all necessary care, assistance, and comforts,” and tbe cost thereof was to .be defrayed out of tbe net income of tbe estate. To accomplish tbis purpose tbe executors were vested with tbe residue of tbe estate, after a bequest of $20,000 out of tbe personal estate to bis son Phillip, “to bold, manage, invest, and reinvest tbe same, collect tbe rents, profits, and income arising therefrom; to make all necessary repairs, and pay tbe taxes, assessments, and insurance thereon; to lease, sell, deliver, transfer, grant, and convey the-whole or any part thereof; to invest and reinvest tbe proceeds, of sale, and generally to have, manage, and control my said estate as fully as I might, if living, do myself.” In its terms and phraseology tbis language is significant,, showing that tbe testator intended to confer on tbe executors all necessary authority under tbe power to manage tbe property throughout William’s life so as to provide for him as tbe testator bad done in bis lifetime. It is evident that be in [542] tended to invest them with broad and discretionary powers in the control and management of the property and in the conduct of William’s affairs for his benefit. The terminology necessarily implies that the executors were t6 handle the property in such ways as they found best under the circumstances to meet the charge imposed by the will. The terms of the will and the directions it imposed negative the idea that the executors were to be limited to an absolute sale of the real estate and to reinvesting the proceeds in interest-bearing securities. Testator manifestly contemplated that they should secure the largest possible income from the estate. The accomplishment of such an object implies that they were vested with a discretion to adopt such management as they, in their judgment, found would best attain the desired result. No portion of the will indicates an intention to restrict this authority by limiting the management and the disposition of the property to any specific method. We should look to all parts 'of the will to ascertain the testator’s intention. Taking this view of the will, we think the language, “generally to have, manage, and control my said estate as fully as I might, if living, do myself,” is an expression of testator’s intention to confer broad and comprehensive powers for the purposes of this trust, and that such language should be construed as having a significance inclusive of every meaning in which the words may be used, instead of a restricted one. It appears that the real estate held in trust yielded no income above the necessary expenses of repairs, taxes, and insurance. After it was improved, as shown, it yielded a net income sufficient to furnish the son William the care and maintenance directed and the executors were thus enabled to accomplish the purposes of the trust. In the light of these facts it seems obvious that the provisions of the will were complied with by the executors in making the improvements and that their administration was in harmony with testator’s intention that the powers granted them should [543] be co-extensive with tbe purposes of tbe trust, and included those required to carry out tbe improvements of tbe real estate, and for tbis purpose they bad authority to execute tbe mortgage for $15,000. Tbis mortgage being valid, and there being no means of payment available, it seems obvious that tbe only way to protect tbe infant’s interest and to prevent a sale of tbe premises in satisfaction of tbis mortgage is to authorize another loan to secure money to pay it. Such a course is promotive, within tbe contemplation of cb. 300, Laws of 1899, of her interests in tbe property. It is suggested that tbe court erred in directing that tbe ■delinquent taxes be paid out of tbe money so to be raised in tbis proceeding, because tbe law imposes tbe duty of paying them on tbe lif'e tenant. Notwithstanding such duty of tbe life tenant, tbe court may very properly direct redemption from a sale for delinquent taxes to prevent tbe issuance of tax deeds, thereby protecting tbe infant’s estate. A delay of redemption until payment could be enforced against tbe life tenant might seriously imperil tbe infant’s interests. It is urged that tbe executors exceeded their trust in •applying more than tbe net income to William’s support. Whether or not there is a basis for such a claim is immaterial in tbis proceeding. Tbe executors bad power under the will to make tbe $15,000 mortgage, and it was proper for the court to ^order a new loan to provide for its payment to protect tbe infant’s estate from loss as threatened if it were not paid. We discover no error in tbe record, and find that tbe order ■of tbe circuit court was well founded. By the Court. — Tbe order appealed from is affirmed. Oassoday, O. J., dissents.