
    New York County.
    —Hon. RASTUS S. RANSOM, Surrogate.
    November, 1888.
    Matter of Odell. In the matter of the judicial settlement of the account of Mary J. Odell and James J. Burnet, testamentary trustees under the will of Lawrence Odell, deceased.
    
    A referee appointed by the Surrogate’s Court has in the proceeding in which he is appointed all the powers and duties of the Surrogate.
    The Surrogate will not disturb the findings of fact of a referee where there is a conflict of evidence, unless the findings are clearly against the weight of evidence, or are unsupported by any evidence.
    While trustees are prohibited from making large improvements to property, they are not prohibited from making necessary repairs which are also improvements.
    
      Testamentary trustees having power to pay debts or legacies or any other sum out of the estate, but having no power of sale, have an implied power of leasing upon ordinary terms or customs of the State or town in which the land is situated.
    Motion to confirm the report of a referee upon an accounting of testamentary trustees.
    The trustees filed their report in this matter on January 9, 1888, and objections thereto having been filed by Lydia H. Kane, the contestant, the matter was referred.
    Upon the coming in of the referee’s report (see ante, p. 91,) the matter was referred back to the referee for further proof. Upon the coming in of the supplementary report, various objections were filed thereto.
    The facts sufficiently appear in the opinion.
    Jacob Fromme for Mary J. Odell and James J. Burnet, testamentary trustees.
    
    Billings & Cardozo, Michael H. Cardozo and Edgar J. Nathan of counsel, for Lydia H. Kane, contestant.
    
   The Surrogate.

I have decided that a referee appointed by this court has all the powers and duties in the proceeding of the Surrogate. Est. Williams, 7 Surr. Dec. 309. This construction of the statute has also been given by the general term of the Second Department. Matter of Niles, 47 Hun 348. I have also held that I shall not disturb the findings of fact of a referee where there was a conflict of evidence, unless the finding is clearly against the weight of evidence or has none at all to support it. Est. Bradley, 7 Surr. Dec. 296 ; Estate of Smith, Id. 293. The plain intent of the legislature was to cast upon the referee judicial powers and responsibilities and thus relieve the Surrogate from any duty in the proceeding except to review his conclusions of law from facts established by the evidence. It was not contemplated that the referee should be an assistant to the Surrogate acting simply ministerially. The referee’s findings of fact should be regarded as the verdict of a jury, and, unless clearly against the weight of evidence so as to amount to a finding without evidence, should be sustained. This proceeding furnishes a fair sample of a controversy over naked questions of fact. I am expected, evidently, by the exceptant to consider all the testimony pro and con quite independent of the referee, who saw the living witnesses and heard them testify, and decide from it upon the merits of the controversy. It is clear to me that this would be a very unwise and unjust course to pursue, and would, in effect, completely nullify the statute authorizing the reference. No suggestion is made by counsel for exceptant that the referee has found a fact without any evidence to support it, or without sufficient evidence to support. He insists, on the only important question involved, that the work done on the houses was improvement, not repair. The nature of the work done was testified to and is not contradicted. The extent of the work is not disputed; the necessity of the work is not denied by any testimony on the part of the exceptant. Just what the exceptant expects from me on this point is difficult to see, unless it is that I shall disregard the testimony of many expert witnesses called by the trustees, all of whom agree that the work was needed to repair the houses. I cannot lawfully do this. It does not belong to me to disregard the testimony of a carpenter or other mechanic to the effect that certain work done was needed as repairs'to a dilapidated building, because it follows that such repairs are, as a matter of fact, an improvement to the building. All repairs are, in a way, improvements; but they are not such improvements as trustees are prohibited from making. On the contrary, they are, in this case, such repairs, although effecting some or much improvement, which are within the plain duty of the trustees to make in the proper discharge of their trust. No evidence was given by the exceptant that these repairs were extravagant, but the trustees multiplied witnesses on the point that they were economical, and established that fact beyond cavil. Nevertheless, the exceptant insists that I should set aside the referee’s finding of that fact. The reason given is that the work done is an improvement, and not a repair. I am referred to no case, nor to any elementary authority, nor do X know of either, for this view. The conclusions of the referee could not have been other than they are. I agree with him entirely. If the facts are really as contended for by the exceptant, surely witnesses could have been found to prove them.

It is elementary doctrine that trustees may make necessary repairs, but not large improvements. Perry on Trusts, § 526. Also that the trustees holding for the life of one person and remainder over for some other person, must consult both the interest of both tenant for life and the remainderman. He must act impartially, and not give either advantage at the expense or to the prejudice of the other. Perry on Trusts, § 539. I assume that the exceptant tried this case before the referee with these principles in mind. Their application depends entirely on the facts in the case. In this case, as I have already remarked, the referee, an able, careful lawyer, on evidence ample for the purpose, has found in favor of the trustee; and I see no valid ground for overruling his decision.

Some point is evidently intended to be made by the exceptant as to the action of the trustees in leasing the houses, a part of the trust estate, repairs thereto, and conditions of letting, etc. The law is that trustees having power to pay debts or legacies, or any other sums, out of the estate, but no power of sale, have an implied power of leasing upon ordinary terms or customs of the state or town in which the land is situated. Newcomb v. Keteltas, 19 Barb. 608 ; Hedges v. Riker, 5 John. Ch. 163. If the property is houses in a city, they can grant ordinary leases. Greason v. Keteltas, 17 N. Y. 491.

The report of the referee is confirmed.  