Scott v. Mussafer

• Decision Date: 28 May 1931
• Docket Number: 3 Div. 948.
• Citation: 134 So. 857,223 Ala. 153
• Parties: SCOTT v. MUSSAFER ET AL.
• Court: Alabama Supreme Court

134 So. 857

223 Ala. 153

SCOTT v. MUSSAFER ET AL.

3 Div. 948.

Supreme Court of Alabama

May 28, 1931

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Bill in equity by David Mussafer, as executor of the will of Eli Capilouto, deceased, against Gilsen Capilouto (widow), and Boley Capilouto and Isaac Capilouto and others (minors) seeking authority to borrow money on mortgage upon property of the estate. From a decree for complainant, John B. Scott as guardian ad litem for Isaac Capilouto and the other minor respondents, appeals.

Reversed and remanded.

Equity should protect interest of infant wards with scrupulous care.

John B Scott, of Montgomery, for appellant.

W. M. Blakey, of Montgomery, for appellees.

ANDERSON C.J.

Generally an executor of an estate cannot mortgage the property of his testator unless given the power to do so by the terms of the will or by a statute. Jones on Mortgages (8th Ed.) § 132; Kirkbride v. Kelly, 167 Ala. 573, 52 So. 660.

The present will, however, while not giving the executor power to sell or mortgage the real estate, does more than give executorial power, as it creates a trust for the use and benefit of the named beneficiaries, and enjoins upon the executor the duty of keeping the estate together and the management and control thereof for a period of years, that is, until the youngest child reaches maturity. Creamer v. Holbrook, 99 Ala. 52, 11 So. 830. The supervision of the administration of trusts is a well-recognized ground of equity jurisdiction, 26 R. C. L. § 133, and resort must be had for this purpose to a court of equity, the probate court having no jurisdiction over said trust. Creamer v. Holbrook, supra.

While the authorities are not entirely harmonious, it seems settled by the weight that a court of equity will authorize a trustee to mortgage the trust property when necessary to discharge existing debts or incumbrances and when to do so is essential to a continuation of the trust or the carrying out of the purpose of same, or, in some instances, for the improvement of the trust property, especially when it enhances the value thereof and increases the income from same. 26 R. C. L. page 1303, § 156; Lueft v. Lueft, 129 Wis. 534, 109 N.W. 652, 7 L. R. A. (N. S.) 263, 9 Ann. Cas. 639, and note on page 643.

The record discloses that the estate owes a good deal more than the personal property can pay, and, of course, the real...