The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-05-01
Supreme Uocrt-General Term.
1870. xs,A.l.,,. Norria and Clarke

Of the city Of New York. to trustees for the purpose
fr out OF the rents and prodts to Keep the property
in repair and to pay al and charges and secoad
y TO pay the residue 10 his children during their
tive thirds to HIS John, and third TO hs daugh
teIs; II bis should die leaving issue his share
PAID 10 peh issue IL without ISSUE TO the daughters
equally IL either Of these should die, leaving ISSUE such
the to be distributed the survivor her
ISSUE There trustees he aso appointed his executors
and the guardians of bis children.
Gardner died soon after the date Of his will.
james Gardner ana John Hyr surviving Trastses and
executors the 26th Of March, 1925 executed lease
TO the plaintiff OF vacant lot bsooging to the estate
for twenty years from the LIST May then ensuing
at the yearly rent of sixty coers the lessee
ing to pay all taxes and except for regu
htiDg streets aad filing docss and to faish before
one year from the commencement Of the lease,
seod substsnts BUILDING to De o. brick Or the ron. Of
feet and bali deep with stone foundation. The lease
provided that at the of TIE term the
Of the buildings should be ascertained by ap-
praisers and the lessons should psy to the lessee
such value within thirty Gays they should again lease
years. for such rent should be agreed upon by the
parties, be determined by the appraisers umpire
similar lease OF the adjoining vacant lot was
executed between the some parties.
1he plaintiff erected buildings IN compliance with
these leases, and has performed al the covenants
At The time OF tee execution OF tbess ncentures it
int Ddeo and upders0o3 that alley between The
lots should also be missed but tn having besn omit
ted oy mistake Hyer, the sole surviving trustee tue
18th 81 ptember 1884, executed the plaintiff instru
ment in which he dernsed the alley for the remainder
Of the tam for the 0Lsderatop of Gftaec dollars but
by mistake neglected TO provs that it should conna 40
during the renewal of the lease.
Hyer afterwards removed from tue trust, ami
Thomas McCaIty and Eugene Ketteltas, the respective
husbands Of the tstatOr's daughters substituted
in bis place McCarty having died, Kettelas remains
Ketteltas insists that tie leases are void The main
9ue ten th.n arising en- tho demurrer IS have trus
execute lesses Of this ptionS '' " 40 p''' "
1t is denied by the counsel in support OF the demurrer
that such trustees have any power to demes tbs
rnises for longer term than yesr The objection taat
they have exercised power mprovidently, would, of
course be different question-an objection entirely
within the corrective, equitable control of this court.
There IL not the slightest ground for doubng that in
granting these leases tie trustees acted with prudence
circumspe ction, and for the best interests in ali
spscs Of the cestis que Indeed the method which
they adopted In this dspositon OF ths prepety which,
of about hundred vacant lots, has propsby
saved great portion If net the Shole of from being
contumed by taxes, assessments and other claims.
ductve land in this city have been by
similar to these and transmitted into fruitful of
WILL therefore, merely consider whether the trustees
bad any power TO demse this property for longer ps
1t is indeed, manifest that the authority of trustee
over the legal estate vested in him exists only for the
benefit Of the cestu que trust Nevertheless, he
al ena'e the estate either wholly partially pur
chaser Tor valuable consideration This is, in fact,
an elementary axiom the doctrine Of trusts. Even
vhena trust expressly circumscribed and there is
doubt in regard to the limited extent of the power
the restriction is not imperative to preclude the
d G Affirmed
it, they are in instances rot only permitted but
are bound to regulate their conduct by discre
pose of supporting contingent remainders have in csr
ia exigencies Cured with tenant for life 10 de.
fully gansayed. adduce these instances to show the
extent in general principles of the discretionary power
Of alternating the propsry when the fee ar vsstad in
them; but is we'll established principle alec amount
ing to an axiom, that s those who apable of allie
mating property or of entering into contracts respecting
1t, may make leases which will endure long their
interests in the thing leased but longer. Cruise
The counsel for the defendants objects that the cases
cited by the Court below relate leases by trustees of
charities the ground that the latter have psrpe
tual interest in the premises while the esate vested in
the trustees under the will in question, may terminate
at sny moment This may be good argument to prove
that the lease cannot endure longer than the trust
nues but furnishes to prove that it is ab
o, void or that the trustee had power execute
see reason, principle why there should be any
except as to the Of toe
cases persons in whom the founder tsssator has
reposed confidence and the principles
When the MODE Of granting leases is prescribed, the
of the pcwer must be strictly pursued where the
to grant them e expressly gwen the trustees
manner VIII oh to their judgment beneficial
and where no such power is expressly given they must
be guided by the general Principles of the Court which
will always Derposs to the exercise Of reason
able discretion, or to rectify departure from it,
Among the comparatively recent cases bearing any
analogy the present that of Naylor Va Arnitt which
find in Russell and Myne SOL is almost precisely in
point It viii be seen that TINS reatsd to private aud
to trustees upon trust out Of the rents and profits
TO pay two annuities and subject thereto, to permit A.
and after him his wife, to receive and take the rents and
profits during their respective Ives and after the de-
OF the survivor he devised the lands to their chill
of the lands for term of years express power
to lease given in the will 1t alleged that the
it was admitted in the argument t6at'ths plaintiffs had
not sustained this allegation and the question then was
in this whether the trustees had under the will
power to grant lease for term Of years The Master
of the Rolls declared that the trustees had power de-
mise the lands, and pronounced the lease valid am
even questioned.
With regard to the alley, the complaint expressly
Should be included in the renewed lease the
If this privilege had been expressed and ed
province Of Court Of Equity to recty although in en-
ter tainins application to supply defect OF this
.ure, the Court viii require strong evidence. Tse
misakeand the only question, therefore, is, whether
it is such a mistake the Court viii rectifyS The in,
tion, and reduced into writing without conta o,nr
the whole intent of the parties. 1t must hesfore De
reformed.
On the other points presented by tbs demurrer also
wit the Judge at Special Term for the reasons
siyer in bis opnion which is unnecessary to repeat
The order OF the Specs fern should be affirmed with
costs.
Court OF Common Pleas-Genernl Term.
oT.ore Judges Ingraham, Woodruff and DAILY
p.RIL 2s.-DLosIoNs.-Scuoder Postey -Judg.
.nent affirmed, with coets.
Miller vs.. Eagle Life Insurance Company Order af-
frWed, with $40 COSTS
Epgle vs. Mesnure Judgment affirmed with costs
Myers vs. Trimble-0rder affirmed, with costs.
Seymour Llmer.-New trial ordered on term, &c.
Scoring vs.. Tye.-Judgment sfirmsd, With costs,
Cox vs.. Bunker Judgment reversed, unless defend.
ant elects, &c.
Lowber VS.. Childs.-Judgment reversed, with costs.
schulten vs. Lord & Brown.-0fcer affirmed with $40
costs
Cain VS. Hcag.-J udgms mt affirmed, with costs.
Taylor Beavers.-Judgment reversed, with costs.
Wilson VS. acknowledgement affirmed, with costs.
Cook Clsrk Judgment modified.
Boifner VS. Jordan Judgment alir med, with costs.
0'CopLell the Hudson River Railroad Company
Judgment affirmed, with costs.
Warren ct al. Van Pelt Judgment reversed, with
ccstt.