
    Matter of the Judicial Settlement of the Account of Benjamin Parr and Susie L. Parr, as Trustees under the Last Will and Testament of Susan P. Lilienthal, Deceased.
    
      (Surrogate's Court, Westchester County,
    
    
      December, 1904.)
    Power of Surrogate on an Accounting—When Improvements on Beal Estate Chargeable to Life Tenant, When to Bemaindermen.
    It seems that a special guardian should make formal objections to questionable items in the accounts of testamentary trustees; but the matter being brought to the attention of the surrogate he may act independently, as an auditing officer, in behalf of infants. The court will protect an infant remainderman and do for him what he is unable to do for himself.
    Testamentary trustees, required by order of the building department of a city to repair foundation walls and put in fire escapes, may, as the same are compulsory, properly charge the expenses thereof to the corpus of the trust estate.
    But alterations and improvements to real estate, not compulsory, but made to enhance the rental value of the property, should be charged to the life tenants who receive the benefit, and not to the corpus of the estate. “Those who receive the benefit must pay the cost.”
    Affirmed, 113 App. Div. 921.
    Proceedings upon the judicial settlement of the accounts of trustees.
    David Bennett King, for trustees; David B. Simpson, special guardian.
   Silkman, S.

No formal objections are made to the account by the special guardian, nevertheless, he makes a detailed report upon certain expenditures hereinafter mentioned, and approves them as a charge against principal.

The better practice would have been for the special guardian to have made formal objections. As to the duty of special guardians, see Edsall v. Vandemark, 39 Barb. 589. Nevertheless, the court’s attention having been called to the items, as to which difference of opinion may exist, it becomes its duty as an auditing officer to act independently before approving and allowing the account.

The trustees have charged for alterations, improvements and repairs made upon premises 217 to 221 Washington street in the city of New York, belonging to the trust estate, sums herein below stated, and have deducted the amount from the principal account, upon the theory that such alterations, improvements and repairs are permanent improvements of such a character as to justify such a course. The items are:

Paid to Moen’s Asphaltic Cement Company for making cellars under said property water tight. . $4,000 00

Paid to Freeman Bloodgood, Jr., for lowering first tier of beams and altering store front.......... 1,251 87

Paid to S. D. Kelly, for altering and shifting girders, partitions and floors on five lofts, plastering, etc. 2,381 91

Paid to James Taylor, for fire escapes.......... 210 00

The first and fourth items, aggregating $4,210, are properly deducted from principal. The trustees were required by the building department of the city of New York to put the foundation walls and the cellars in a safe and sanitary condition, and to erect fire escapes. The' directions of the building department were compulsory, and the trustees had no discretion in the matter. They were in their nature improvements that went to benefit the freehold as much so as if the public authorities had ordered a sewer in the street, or a sidewalk, in front of the premises.

Under the authority of Stevens v. Melcher, 80 Hun, 514; aff’d, 152 N. Y. 551, the expense became a proper charge against the capital of the estate. The other two items, aggregating $3,633.78, were for alterations and repairs not in.cluded in the mandate of the building department, but were expenditures made under the following circumstances:

Prior to the death of testatrix the property had been leased for a term of years for occupation as a cold storage plant. For the purposes of this business and for the accommodation of the ténant the latter had been allowed to make certain alterations in the building. After the lapse of years the lease expired and possession of the premises was surrendered. So far as it appears there was no provision in the lease requiring the tenant to restore the premises to their original condition, and they remained as they had been altered to suit the business of a cold storage warehouse. The building so altered was not suitable or rentable for other purposes. The trustees in exercising their discretion deemed it wise to restore the building more to its original condition so that the ground floor throughout is now on the same plane, which is down to near the street level, instead of being, as to the front portion, three steps higher than the rest. Beams and girders in the lofts had been cut by the tenant to accommodate the cold storage apparatus, and these were repaired and restored, as were also the floors and partitions which had been worn out.

It does not satisfactorily appear here why these repairs and restorations should be charged to principal, or why the expense thereof should not be borne by the life tenants and be paid out of their income. It is contended that these alterations and improvements were necessary, were of a permanent, nature,- and that it was the duty of the trustees to make them in order to obtain a proper rental for the premises justifying a charge of the cost against the principal of the trust fund. But merely putting the building back in the shape it was before the alterations b.y the tenant for cold storage purposes is not necessarily making improvements of a permanent nature. It was so in a sense, but not in that sense that justifies the depletion of the principal for the doing of them. It was ■ a restoration which may well have been anticipated when the alterations were made, and have been provided for in the rent reserved. It was a proper case in which to have established a sinking fund out of the rents, sufficient to restore the premises at the end of the demised term to their original condition.

In any view, renewals of worn out floors and partitions and replastering lofts come under the head of repairs pure and simple. Such wear and tear in rented buildings are always present, and restorations of such a character due to wear and tear are constantly provided for in leased ware-houses.

The trustees urge that Stevens v. Melcher is authority for their contention. What is said in that case as to expenditures made pursuant to a mandate of the building department has been followed and applied here.

In this, as in the Stevens case, there can be no question as to the power of the trustees under the trust established by Mrs. Lilienthal’s will, to make proper improvements and needed repairs and restorations of leased premises, and under extraordinary conditions where special equities were found to exist a case might be made which would justify a charge for such expenses against the capital of the trust estate. But the court must be jealous of the integrity of the corpus of the estate and not open the door to charges against it without extreme caution, otherwise it would be the constant subject of assault at the instance of the life tenant.

Special equities were found to exist in the Stevens case, in the matter of two old. residences valued with the lot at $150,-000, and mortgaged for $140,000. Interest upon this debt, together with taxes exceeded the income by more than $9,000 in one year. The trustees were declared to have been justified in removing the old and erecting new buildings complete, and in paying for the improvements out of the prncipal; and the equity was that otherwise this very valuable property might have been wasted, leaving nothing for either life tenant or remaindermen.

Such peculiar equities are not shown to exist in the case under consideration. The repairs made in the lofts were such as would naturally be required at the end of a long lease and before a new tenant would be willing to take possession; they should not be classed as permanent improvements nor the expenses charged to principal.. They were made primarily for the benefit of persons entitled to income, and were immediate, and will be of continuous benefit to them.

“ Those who receive the benefit must pay the cost.” Stevens v. Melcher, 80 Hun, 524.

Furthermore, this property did not come to the trustees in an untenantable condition, but occupied and paying rent. Upon the expiration of a long lease repairs which were to be anticipated and with prudent management provided for by reserving a part of the rents received became necessary.

'One of the remaindermen is an infant. His interests require that the principal of the estate should not only be safely invested, but safe-guarded and protected in every respect, and the court must see that that is done which he is unable to do for himself.

The account as filed is approved, except in respect to the two items above referred to, aggregating $3,633.78, which must be transferred from principal to income account.

Let findings and decree be submitted in accordance with this memorandum.

Decreed accordingly.  