
    
      In re Odell’s Estate.
    
      (Surrogate's Court, New York Country.
    
    November 17, 1888.)
    1. Trusts—Powers of Trustees—Repairs.
    While a trustee has no power to make improvements on the trust property, he may, at the expense of the estate, cause necessary repairs to the buildings to be made, though improvements incidentally result.
    3. Same—Power to Lease.
    Trustees having power to pay debts, etc., out of the estate, but none to sell, have an implied power to lease the real estate upon terms usual to such property in the locality where it is situated.
    S. Reference—Weight of Referee’s Findings.
    The findings of a referee appointed by a surrogate, upon questions of fact, will not be set aside by the surrogate, unless opposed by such a weight of evidence that it can be said that they are without evidence.
    On exceptions to referee’s report.
    Accounting of the trustee under the will of Lawrence Odell, deceased. For opinion on a former hearing, see 2 IT. Y. Supp. 752.
    
      Billings & Cardoza, for exceptant. Jacob Framme, for trustee.
   Bansom, S.

I have decided that a referee appointed by this court has all the powers and duties in the proceeding of the surrogate. Estate of Williams, 7 Sur. Dec. 309. This construction of the statute has also been given by the general term of the Second department. In re 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. Estate of Bradley, 7 Sur. 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 tome that this would be a very unwise and unjust course to pursue, and would, in effect, completely nullify the statute authorizing the reference. Ho 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 it. 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 iniprovepaents 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. Ho evidence was given by the exceptan t 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 I 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. 2 Perry, Trusts, § 526. Also that the trustees holding for the life of one person and remainder over for some other person must consult the interest of both tenant for life and the remainder-man. He must act impartially, and not give either advantage at the expense or to the prejudice of the other. Id. § 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. Ketteltas, 19 Barb. 608; Hedges v. Riker, 5 Johns. 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.  