Jordan v. Jordan
| Decision Date | 20 June 1906 |
| Citation | 192 Mass. 337,78 N.E. 459 |
| Parties | JORDAN et al. v. JORDAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas E. Rushmore, for Jas. C. Jordan.
Roger F. Sturgis, for guardian ad litem.
Chas K. Cobb, for executors and trustees.
By the will of the testator after devising in article 5 his mansion house to his wife, the residue of the estate consisting of real and personal property to a large amount is given to trustees 'in trust to manage and invest the same in a careful and prudent manner, and receive the income therefrom, and after deducting and paying from said income all taxes and other charges incidental thereto including a reasonable compensation to the trustees * * * to pay to my said wife out of the remainder of said income, if she shall survive me, the yearly sum of twenty-five thousand dollars * * * during the term of her natural life.' He then proceeds, subject to this provision, to provide for his four children and their issue, which as to his son James included only the children by his first wife, by further directing the trustees 'to divide all said rest, residue and remainder of said estate and property * * * into such a number of equal shares that there shall be one share held in trust for the benefit' of each of them. Upon such division being made it then becomes the duty of the trustees 'to manage such general share in a careful and prudent manner, and invest from time to time in a careful and prudent manner such part thereof as may be uninvested, and collect and receive the income from such general share, and after paying from the income of such general share all taxes and other charges incidental to such general share, including a reasonable compensation to the trustees for the time being for their services in respect to such general share to pay the residue of the income of such general share to the son or daughter of mine for whose benefit such general share is held in trust.' But it is further provided if the trustees find it inconvenient this division need not be made, and only his or her proportionate share of the income need be ascertained and paid over to the beneficiary. This course has been followed as the trustees thus far have treated the estate as undivided. In article 16 their discretionary powers are defined in those words, 'full power and authority are hereby given to the trustees for the time being under any article of this my will to change from time to time the investment or reinvestment of the whole or any part of the property held in trust by such trustees, and for this purpose to sell the whole or any part thereof at public auction, or by private sale, and for such consideration and on such terms as such trustees * * * shall deem expedient, and convey the same by good and sufficient deed or deeds in fee or other transfers or conveyances to the purchaser or purchasers discharged of all trusts, and receive the proceeds of such sale, but such proceeds shall be invested * * * in such other property as they shall deem safe and prudent investments, but to be held upon the same trusts. * * *' A portion of the personalty has been converted into realty by a purchase of the premises described as the 'Park Square Tract,' and by building an apartment house in 'Trinity Court,' and while three parcels of real property of which he died seised have been sold, the fee in one has been acquired under the foreclosure of a mortgage held by the testator at his death. With these exceptions and the transfer in compliance with a contract of the testator of certain shares of corporate stock out of a large number owned by him, and the liquidation of his interest in the mercantile firm of which he was a member, there appear to have been no substantial changes in the form of the property as received by them. The widow has since deceased, but the children survive, and from time to time the trustees have rendered accounts of their trust in which receipts, expenditures and investments are shown, and while apparently assented to by the other beneficiaries, the appellant, who originally objected to their allowance on many grounds that under the appeal have become eliminated still claims that the first six accounts should be reformed so that certain sums credited to income should be charged to capital. These objections rest upon two grounds, either that the items now in dispute for repairs, alterations and improvements were of such a permanent character that they should have been so charged, or that if the taxes and maintenance of any separate parcel exceeded the income therefrom, the deficit should not have been finally supplied from the general income, but upon sale of the land should have been taken from principal.
In adapting, after completion, the basement, first story, and other parts of the building erected by them, by providing an elevator, building a stairway, with other minor changes, and furnishing additional equipment of lighting, heating and plumbing, and in remodeling and fitting the third story of another building left by the testator, for the purpose either of securing tenants, or for their accommodation, many changes or improvements were made, some of which are now claimed to have been permanent in character. These alterations increased the rental value of the property, and if the total cost both of construction and equipment, of which these items form only a part, come out of the remaindermen, then as no part of this burden is borne by the beneficiaries for life they would receive a benefit wholly at the expense of those who ultimately would participate in a division of the estate at the determination of the trust. Under the large discretionary powers conferred, the trustees, in the exercise of a sound business administration might find it expedient from time to time to make extensive alterations in the real property in order to obtain tenants, and render the whole estate productive, so that the income could...
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