
    Ada J. Potter, Respondent, v. Alfred C. Hodgman, as Administrator and Trustee with the Will Annexed of Mary Eldridge, Deceased, Appellant, Impleaded with Others.
    
      Will—when a provision ft»' the support of a son creates a trust and not a power in trust — a power to mortgage not presumed where a power of sale only is given — leave ofthecourt to mortgage not presumed from the entry of a decree of foreclosure.
    
    A testatrix, by her will, directed her executors to “use and apply the real property hereinbefore bequeathed to them in trust to the support and maintenance of my said son William H. Eldridge for and during the period of his natural life. ” A further clause empowered the trustee “to sell and convey said real property, or any part thereof, for the effectual carrying out of the provisions of the trust.”
    
      Seldf that the executors took the real estate in trust to receive the rents and profits thereof and to apply the same to the support and maintenance of the testatrix’s son during his life, but that the executors had no power to mortgage such real estate for the purpose of securing money to apply to the support of the testatrix's son;
    That such a mortgage was void, and that a party taking the same was chargeable with notice of that fact;
    That a judgment foreclosing the mortgage could uot be sustained upon the theory that, if the trustee had applied to the court for leave to mortgage the real estate, the court would have granted such leave, and that by granting the judgment of foreclosure and sale the court approved the execution of the mortgage — certainly not in the absence of proof that the income was. not sufficient for the support of the son or that the property needed repairs or that any other reason existed why the mortgage should be given.
    Appeal by the defendant, Alfred O. Hodgman, as administrator and trustee with the will annexed of Mary Eldridge, deceased, from a judgment of the Supreme Cburt in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 21st day of August, 1902, upon the decision of the court, rendered after a trial at the Fulton Special Term, directing a sale of mortgaged premises under foreclosure.
    The action is brought to foreclose a mortgage given by one Armstrong, acting as trustee under the will of Mary Eldridge, deceased. The defense is that, und'er the terms of the trust, the trustee had no authority to mortgage the property in question. The trial court held that he had Such authority, and rendered judgment in favor of the plaintiff for a foreclosure of the same and for a sale of the land therein described, and from the judgment entered thereon this appeal is taken.
    
      Edgar Hull and C. H. Sturges, for the appellant.
    
      R. O. Bascom and Edgar T. Brackett, for the respondent.
   Parker, P. J.:

Upon the argument of this appeal both parties seem to agree that the executors named in the will in question took the real estate in trust to receive the rents and profits thereof, and to apply the same to the support and maintenance of the testatrix’s son, William H. Eldridge, during his life; and they seem further to agree that such trust was also broad enough to allow the trustee to apply the real estate itself to such support and maintenance, if the income therefrom should prove insufficient. And the respondent, basing his argument upon such a. situation, claims that the trustee, under such a trust, took the legal title, and that, as one of' the methods of “applying” such real estate to the support of .the son, he was authorized to mortgage it to secure money borrowed for that purpose. He claims, therefore, that the mortgage in question, being given by one who had succeeded to the full powers of those named in the will, was permitted by the provisions of this trust, and that this plaintiff was protected in receiving it as a security for the money she loaned him.

Unless by the phrase “ use and apply the real property herein-before bequeathed to them in trust to the support and maintenance of my said son William EL. Eldridge for and during the period of his natural life,” we are to assume that the right “ to receive the rents and profits ” of such real estate and apply them, ” to the use of said Eldridge, was given, no valid trust was created. (Real Prop. Law, § 76.) If the words “ use and apply ” mean merely to sell the property and use the money received therefrom to support the son, then no title vested in the trustee. It was a mere naked power under section 77 of the Real Property Law, and clearly no right to mortgage was given. So, if by that phrase, it was intended that the trustee should receive the rents and profits and apply them, only to the son’s support for life, then a right to mortgage the real estate would clearly not be included within the provisions of the trust. It is not at all clear which scheme was intended by the testatrix, but, in view of the provisions in the 4th clause of the will, empowering the trustee to sell and convey said real property, or any part thereof, for the effectual carrying out of the provisions of the trust,” it would seem that she understood that a trust was created, and anticipated that at some time the real estate itself would be needed to effectually carry out its provisions; and, therefore, I am inclined to adopt that construction upon which the parties hereto seem to be agreed. But I would not reach that conclusion were it not for the provisions of the 4th clause, last above cited, and hence I cannot ignore the full meaning and effect of such • clause in determining what are the powers devolved upon the trustee by the provisions of this trust. Under this construction, he is directed to receive the rents, etc., and apply them to the support of the son. If, however, they prove insufficient, and it becomes necessary to “ apply ” the real estate itself to that purpose, there is a specific direction in the will as to how he shall make that application. He shall sell and convey it. Clearly, he is not, by that direction, authorized to mortgage. (27 Am. & Eng. Ency. of Law, 225; Coutant v. Servoss, 3 Barb. 128, 140, 141; Shaw v. Saranac Horse Nail Co., 144 N. Y. 220, 224.) And so the specific duty which the trust imposes upon him is to sell the real estate whenever it becomes necessary to apply it to the son’s support. In the face of this direction and' power, was it necessary for him to mortgage in order to “ apply ” the real estate to the purposes of the trust ?' Was it proper for him to do so ? It may have been a better method, but was it the one provided for by the provisions of the trust ? Clearly it was not. Had there not been any provision for a sale, then possibly the court might have ordered a mortgage, as was done in Rogers v. Rogers (111 N. Y. 228), but in the face of such a power of sale, a mortgage seems to be .utterly unnecessary and, substantially in contravention of the terms of the trust.

It is suggested that, had the trustee applied to the court for leave to make application of the real estate to the son’s support, by means of a mortgage thereon, the court would have authorized one to be given, and that what the court would have then ordered, the court may be deemed to have approved and ordered in granting the judgment of foreclosure and sale in this action, and 2 Perry on Trusts (4th ed. § 476) is cited as authority for the latter proposition.

’But, in the first place, it is begging the question to assume that the court would have made such an order. Inasmuch as the terms of the trust provided a method of so applying the real estate, the court would doubtless have left the trustée to follow the instructions therein contained. (O'Connor v. Waldo, 83 Hun, 489, 491.) But if the court would have at all interfered with its provisions in that respect, it would have done so only on clear proof made that proper reasons existed for the same. Ho proof whatever upon those questions appears to have been made to the court that is supposed to have now approved and .made such an order. Upon the trial of this action it is not made to appear that the income was not enough to support the son. It is not made to appear that the property needed any repairs, nor that any reason existed why a mortgage should have been given at the time the one being foreclosed was taken.- And it is quite doubtful, from the evidence, that any considerable portion of the $1,300 advanced to the trustee was actually applied to the support of the son, or even to. the benefit of the trust property itself. Ho facts were established on the trial in the court below, that can be considered in any way to have enlarged the authority of the trustee to execute a mortgage upon the trust property beyond what appears from the terms of the will itself. That will must be supposed to have been before the plaintiff when she made the loan and took this mortgage, and from its terms she was, in my opinion, bound to take notice that it gave no authority to the trustee to execute the mortgage' in question.

The mortgage was, therefore, void (Bloomer v. Waldron, 3 Hill, 361, 371), and she, having notice that the trustee was acting beyond the scope of his authority in executing it, is not protected by any principle of equity to which I am referred. A judgment. directing a foreclosure and sale tinder such mortgage was unwarranted, and must, therefore, be reversed.

All concurred; Smith, J., not sitting.

Judgment reversed and new trial granted, with costs to appellant to abide event.  