
    In the Matter of the Petition of Charles E. Morris, Ex’r, to sell or mortgage real estate.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    
    Decedent's estates—Sale of beal estate.
    Testator by his will gave to his widow the use for life of all his real and personal estate “ after deducting therefrom the sums necessary to keep such real estate in proper repair and to pay the assessments and liens thereon.” With the exception of his residence his real estate consisted of vacant lots upon which the assessments and taxes were trifling, but subsequently they were largely assessed for improvements to such an extent that if the sums necessary to pay them were retained the widow would not be able to live in the manner to which she was accustomed. Meld, that the testator had in mind the ordinary assessments to which his property had been subject, and not such extraordinary assessments as have been imposed, and that a case was presented where the executor should be allowed to mortgage or sell part of the property to meet such expenses.
    (Maoombbr, J., dissents.)
    Appeal by Ralph Morris and others, infants, by their guardian ad litem, Henry W. Conklin, and by Jeannette Morris and another from an order made and entered in Monroe county, ¡November 9, 1891, granting leave to the petitioner to mortgage or sell certain lands for the payment of assessments thereon.
    
      Henry W. Conklin, guardian, for app’lts; George F. Hanforth, for resp’t
   Lewis, J.

George H. Thompson, of Rochester, died on the 26th day of June, 1884, possessed of various parcels of real estate in the city of Rochester, some of which were improved and productive. There were three lots owned by Mr. Thompson and known as lots 87, 45 and 55, and are represented upon a map attached to the case as outlying farms or pasture lands. These lots are located in the outskirts of the city of Rochester. They are vacant, unimproved, and are yielding no revenue. The annual taxes upon these vacant lots, down to the time of the death of Mr. Thompson, were comparatively small, not exceeding in the aggregate $20.50.

Mr. Thompson left a will, section one of which is as follows :

“ I give to my wife, Carrie L. Thompson, the use, during the term of her natural life, of all of my real and personal estate, after deducting therefrom the sums necessary to keep such real estate in proper repair and to pay the assessments and liens thereon.”

The will then makes provision for an adopted son and an adopted daughter, and makes the appellants residuary legatees. He left no natural children. He appointed Charles B. Morris executor of his will and a trustee for the purpose of carrying its provisions into effect, giving him power to take charge of the real estate during the life of the testator’s wife, and directed that the net rents and profits therefrom should be paid by the trustee to his widow. He was residing, at the time of his death, with his family, consisting of his wife and adopted son, in a dwelling house located upon large grounds on one of the most valuable residence streets in the city of Rochester. He had been accustomed to live in a liberal manner, maintaining a somewhat expensive establishment, keeping a coachman and horses. It is apparent from his will that he desired and expected his widow to continue to occupy the homestead which she owned, and live substantially in the same style and manner they had been living. By a codicil to his will he bequeathed to her a span of horses, single and double carriage, with the necessary harness, robes, blankets, etc. Since the death of Mr. Thompson the residence district of the city of Rochester has extended rapidly towards the three vacant lots mentioned. A large number of dwelling houses have been erected in their immediate vicinity, and the lots are obviously increasing in value.

The city recently authorized and directed extensive improvements, consisting of the opening and improvement of streets through and adjacent to these lots, the building of sewers and .sidewalks, and assessments have been made upon the lots to pay for these improvements, amounting in the aggregate, including interest and expenses, to the sum of eight or nine thousand dollars. The trustee, Mr. Morris, not having funds with which to pay these assessments, presented a petition to the court, asking for an order authorizing him to mortgage these lots or authorizing him to sell such parts thereof as might be necessary for the purpose of raising the necessary funds to pay these assessments, and the order appealed from was made authorizing the trustee to execute a separate mortgage on each of the lots for a sum sufficient to pay and discharge the assessments upon the lots respectively, together with the interest, fees and expenses, or, if he should be unable to obtain the money by mortgaging the lots, the order authorized him to sell at public or private sale enough of each of the lots to raise a sum sufficient to make such payments. The appellants opposed the granting of the order. It was made to appear to the special term justice that the income from the estate was barely sufficient to provide for the support of the widow and adopted son in the manner they had been accustomed to live prior to the death of Mr. Thompson, after deducting therefrom the ordinary taxes and -assessments thereon, with the necessary repairs and expenses. If .a sufficient amount should be reserved from the income of the estate to pay these extraordinary expenses, there would not be sufficient left to maintain Mrs. Thompson and her adopted son in the occupation of the premises the testator desired her to occupy, unless a very radical change should be made in their style of living. It appeared upon the hearing of the motion that the lots had already been sold by the city for the non-payment of some of these assessments, and unless the assessments are paid the lots will be lost to the estate. In providing in his will for the payment of taxes and assessments upon his estate out of the income therefrom, we think the testator had in mind the ordinary assessments to which his property had been theretofore subjected, and not to such extraordinary assessments as have been made by the improvement of these lote. Had these assessments been imposed during the life of Mr. Thompson, he obviously would have raised the money by mortgaging or selling some part of his property. .

It is not at all probable that he would have so changed his style of living and thereby reduced his expenses so as to have -saved a sufficient amount out of the rents and income of his property to pay these assessments; and we are at liberty to give such n construction to his will as to carry out what we believe to have been his intention. It is apparent that these lots are rapidly increasing in value. These improvements we assume have added to their value a sum equal to the amount of the assessments. The improvements are of a character proper and necessary to prepare the lots for residence purposes. The improvements inure to the benefit of the appellants as residuary legatees, .but add nothing to the present income of the estate. An emergency has arisen not contemplated nor provided for by the testator in his will. Funds are required to preserve the estate. It was made to appear to the court that it was necessary and for the benefit of the estate to raise by mortgage thereon, or by a sale thereof, funds for the purpose of preserving or improving such estate, as provided by the act of 1886.

We think the facts presented justified the granting of the order, and it should be affirmed, with costs to the respondent and to the guardian ad litem of the infants, payable by the trustee out of the moneys raised by the mortgaging or sale of the land.

Dwight, P. J., concurs; Macomber, J., dissents.  