Rogers v. Rogers

• Decision Date: 27 November 1888
• Citation: 111 N.Y. 228,18 N.E. 636
• Parties: ROGERS v. ROGERS.
• Court: New York Court of Appeals Court of Appeals

111 N.Y. 228

18 N.E. 636

ROGERS

v.ROGERS.¹

Court of Appeals of New York.

November 27, 1888.

Appeal from supreme court, general term, Second department.

Action by Sarah A. Rogers, as executrix, for construction of the will of her deceased husband. Exceptions filed, and appeal taken by George W. Rogers, one of the beneficiaries under the will.

1. TRUSTS-BENEFICIARY AS TRUSTEE-POWERS OF COURT.

Where a will leaves property in trust to the executors named therein, or such of them as might qualify, and the only person who qualifies as executor is also a beneficiary under the will, the court properly directs in detail the execution of the trust, through its own officers.

2. TRUSTS-MORTGAGE OF TRUST PROPERTY.

The will vesting the whole legal estate in the trustee, and directing the entire income to be applied to the support of the beneficiaries, and if that was insufficient, so much of the principal as should be necessary, and the personal estate being soon exhausted, and the realty increasing in value, the court properly directs the letter to be mortgaged, to raise the required funds, although the will does not expressly give power either to mortgage or sell the land.

C. K. Corliss, for appellant.

S. V. Speyer, for respondent.

FINCH, J.

The principal questions argued before us are not in the case, and should not be considered. The action was brought soon after the death of testator, by his wife, as executrix, who had alone qualified. The complaint sought a construction of the will in two respects, about which alone it alleged that doubts had arisen. The first was whether the executrix was authorized to convert the estate, or any part thereof, into money before distribution; and the second was whether, during the minority of Beatrice, who was the youngest child living at testator's death, the executrix could sell any part of the property, and, in case of necessity, apply principal as well as income to her support and that of the minors. There was no suggestion of the invalidity of the trust for any reason, or that the testator died intestate as to the rest and residue of his estate, but, assuming the validity of the trust, the questions raised were as to the authority of 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. We are bound to assume that the only questions tried and decided were those raised by the pleadings. In October, 1869, or almost 20 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 trust, 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 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 education. 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...