Pennington v. Metro. Museum of Art

Full title: PENNINGTON et al. v. METROPOLITAN MUSEUM OF ART et al.

Court: COURT OF CHANCERY OF NEW JERSEY

Date published: Jul 14, 1903

65 N.J. Eq. 11 (Ch. Div. 1903)

65 N.J. Eq. 11

Opinion

07-14-1903

PENNINGTON et al. v. METROPOLITAN MUSEUM OF ART et al.

John R. Beam and John W. Griggs, for complainants. George Holmes, Robert De Forest, and Robert Thorne, for defendant Metropolitan Museum of Art. Alan H. Strong, for defendants William Du Pont, Jr., and William Du Pont, his guardian ad litem.

MAGIE, Ch.

(Syllabus by the Court.)

Bill by William Pennington and others, executors of Jacob S. Rogers, against the Metropolitan Museum of Art and others, for relief respecting the trust arising under the will and codicil of Jacob S. Rogers, and for instructions to the trustees. Referred to the master.

The following extracts from said will and codicils show the trust in question:

Will of Jacob S. Rogers.

"* * * Sixteenth. All the rest, residue and remainder of my estate real and personal of every nature and kind and wherever situate, I give, devise and bequeath to my brother Columbus B. Rogers, and my friend Asahel S. Levy, my executors hereinafter named and appointed. To have and to hold unto them, their successors and assigns forever, with full power to receive the rents, issues, and profits thereof, in Trust nevertheless to sell and convey and convert the said real and personal estate into money, or available securities, and I order and direct them to sell, convey and convert the same into money or available securities, as soon as it can be done, having in view the best interest of the estate, and thereupon, without delay, to pay over the proceeds thereof, and the rents, income, issues and profits thereof to The Metropolitan Museum of Art in the City of New York, a corporation constituted and created by chapter 197 [page 491] of the Laws of 1870 of the state of New York, for the use and purpose of forming an Endowment Fund for the said Museum, or of adding to and enlarging the Endowment Fund of said corporation, if such a fund now exists, or shall be in existence at the time of my death; the income only of the fund hereby created, or intended so to be, to be used for the purchase of rare and desirable art objects, and in the purchase of books for the library of said Museum, and for such purposes exclusively, the principal of said fund is not to be used, diminished or impaired for any purpose whatever. * * *"

First Codicil.

"* * * Second. I except and exclude from the rest, residue and remainder of my real and personal estate given and devised by my said will and testament all my real estate in the city of New York and in the state of New Jersey, and also all of the stock of the Paterson and Hudson River Railroad Company and of the Patterson and Ramapo Railroad Company which I may own or be entitled to at the time of my death. And I give, devise and bequeath the same to Asahel S. Levy and Jenkins Van Schaick, both of in the city of New York, for and during the lives of Thomas B. Bradford, and of Theodore B. Rogers, Jr., grandsons of my deceasedbrother Theodore Rogers, and for and during the life of the longest liver of said Thomas B. Bradford and Theodore B. Rogers, Jr., in Trust nevertheless to collect and receive the rents, income, issues, dividends, interest and profits thereof and to apply and pay the same as follows:

"1st. To the payment of all taxes, assessments, insurances, alterations, repairs, and other charges which may be or come against said real and personal estate, or which may be necessary for the proper care and preservation thereof.

"2nd. To apply to the use of each of the said persons above named viz. Thomas B. Bradford and Theodore B. Rogers Jr. five hundred dollars annually so long as he may live.

"3rd. The remainder of said rent and income if any, shall be used and applied to the improvement and permanent benefit of the real estate given and devised in trust by this codicil.

"4th. If there shall still remain a balance of said rent and income, I give and bequeath the same to The Metropolitan Museum of Art in the City of New York, for the purpose of forming or increasing an Endowment Fund of said Corporation, as I have in said will and testament provided.

"My executors and trustees shall have and I hereby give them power to lease and let the said real estate for terms of not more than 15 years at any one letting or leasing, and for such rents and upon such terms, covenants, agreements and conditions as to them may seem just and proper. * * *

"Fourth. Upon the death of the longest liver of said two named persons, viz. Thomas B. Bradford and Theodore B. Rogers, Jr. I order and direct the said Trustees to sell and convert into money all of said real estate devised in trust in this codicil, and I give and bequeath the proceeds arising from said sale and conversion, and the two above mentioned railroad stocks, together with any accumulations of the income from said properties, to the Metropolitan Museum of Art in the City of New York, in my said will and testament mentioned, for the same uses and purposes and subject to the same conditions and limitations which are contained in the sixteenth and seventeenth clauses of my said will and testament, and as are therein prescribed and applied to the gift, devise and bequest of the rest, residue and remainder of my real and personal estate, and the provisions I have made in the event of the failure or invalidity of the devise and bequest of said rest, residue and remainder or any part thereof, and the disposition to be made of the same, shall apply to and include my said real estate and the two stocks above mentioned and hereby excluded from and taken out of said rest, residue and remainder and hereby intended to be devised and bequeathed.

"If however, at the time this instrument shall go into effect, the said Metropolitan Museum of Art in the City of New York, shall be authorized to take the land in question by devise, a sale of said real estate shall not be necessary, but the same shall upon the expiration of the trust term hereby created, vest in possession in said Corporation to which in that event I give and devise the same, and it shall not be necessary to sell and convert the remainder of the rest, residue and remainder of my real estate into mosey as provided in my said will if at the time of my death the said Metropolitan Museum of Art shall be authorized to take it by devise, ', and in that event I give and devise the same to that corporation absolutely. * * *"

Second Codicil.

"* * * Third. If at any time it shall I happen that the income from the real and personal estate given and devised in trust by the second clause or paragraph of the said first codicil to my said last will and testament shall be insufficient to pay and discharge the taxes and assessments which are or may be levied and imposed upon said real and personal estate, such deficiency shall be made up and paid and supplied out of the income of the estate, real and personal, given, devised and bequeathed to the Metropolitan Museum of Art by my said last will and testament, or out of the income from the fund which may arise from the sale and conversion of said real and personal estate ordered and directed by said last will and Testament. * * *"

Fourth Codicil.

"* * * As Thomas B. Bradford mentioned in a former codicil as one of the parties during whose life a certain Trust is to last has since died; I hereby nominate and appoint to take his place in all things William Du Pont, grandson of my deceased brother Theodore Rogers. And I hereby declare William Pennington, Theodore B. Rogers and Judge John S. Barkalow are the executors and trustees of and under my said last will and testament and the codicils thereto. * * *"

John R. Beam and John W. Griggs, for complainants. George Holmes, Robert De Forest, and Robert Thorne, for defendant Metropolitan Museum of Art. Alan H. Strong, for defendants William Du Pont, Jr., and William Du Pont, his guardian ad litem.

MAGIE, Ch. Complainants are the executors of Jacob S. Rogers, deceased, and hold, as trustees, the personal and real property withdrawn and excluded from the residuary disposition made by the sixteenth clause of the will of the testator, and created a trust fund by the provisions of the second clause of the first codicil to said will. Their bill seeks specific relief respecting the disposition and management of the trust fund, and it contains a prayer for general relief. The defendants are the Metropolitan Museumof Art, a corporation of the city of New York, Theodore B. Rogers, Jr., William Du Pont, Jr., and William Du Pont, guardian of William Du Pont, Jr. The Metropolitan Museum of Art has filed an answer admitting the charges of the bill, and joins in one of the prayers for specific relief contained therein. An answer to the bill by the defendant Theodore B. Rogers, Jr., who is an infant, has been filed by Theodore B. Rogers, his guardian, submitting to the direction of the court, and praying for protection of the infant's interest. An answer has also been filed by William Du Pont, Jr., who is an infant, by William Du Pont, his guardian ad litem, and by said William Du Pont, as general guardian of said infant. By that answer no contest is presented in respect to the facts charged in the bill, but it is submitted thereby that no such specific relief as is prayed for in the bill can be decreed, except on consent of said infant, which consent is thereby expressly refused. The cause has been brought to hearing upon the bill, answers and proofs.

The proofs establish the following facts: The stocks of the Paterson & Hudson River Railroad Company, and of the Paterson & Ramapo Railroad Company, which are included in the trust fund in question, are producing an annual income of $13,676. The real estate in the city of New York included in the trust is, in part, unimproved, producing no income; the remaining part is a lot, with a building which has been unoccupied for several years past, and which needs considerable repairs to enable a rental to be obtained for it. The taxes imposed on that property for the year 1902 were $6,021.49. In the opinion of a witness, the two tracts are worth $362,000. The real estate in the state of New Jersey in the trust, among other things, includes land in the city of Paterson, viz., a considerable tract of unimproved land, and the late residence of the testator. All the real estate in the city of Paterson was assessed for taxes, for the year 1902, at a valuation of $412,790.40. One of the executors testified that he and his co-executors consider this valuation to be excessive, and have appealed therefrom to the state board of taxation. The witness, however, admits that the lands in that city have a valuation of over $200,000. The annual taxes imposed on that property at the valuation of the taxing office for the year 1902 were $10,310.76. There are, besides, large assessments upon that property, imposed for street improvements (to an amount not disclosed by the proofs), which have not been paid. The same witness expresses an opinion that the whole Paterson real estate cannot be made to yield an annual income of more than $600. There is also included, in the trust in question, some land situated at and in the vicinity of Pompton, N. J. The same witness expresses the opinion that that property cannot be made to produce more than $400 a year. What annual taxes are imposed therein is not disclosed by the proofs.

From the facts established by the proofs, the following inferences may be fairly drawn: (1) That the present income of the trust is now insufficient to discharge the annual taxes imposed upon the property, and directed to be first paid out of the income by the first subdivision of the second clause of the first codicil; (2) that there is no reasonable probability that in the future the fund will produce sufficient income to discbarge such annual impositions, because there will be no income to apply to improvements under the third subdivision of the second clause of the codicil, and therefore no increase produced from the fund; and because the limitation of the power to rent the property to 15-year terms will prevent the unimproved land being let upon building leases, which might increase the income.

It results that at present the fund can produce nothing to satisfy the annual payments directed to be made to the two infants, and there is no reasonable likelihood that it will do so for the future. The deficiency required to be met by the Metropolitan Museum of Art under the third clause of the second codicil now exists, and is likely to continue to exist and to be increased by the increase of taxation, and especially by assessments for municipal improvements in Paterson. If the trustees could be relieved from the burdens arising from the requirement to pay the impositions on the real estate included in the trust, the income from the stocks included therein would not only suffice to pay the annual legacies to the infants, but would leave a large surplus.

The contention made by the guardian ad litem of the infant Du Pont, one of the beneficiaries under the trust, ought to be first considered. That contention is that, notwithstanding the trustees are unable, in the present condition of the trust fund, to make any payment under the annual legacy to that infant, and that the fund is so limited by the terms of the trust that there is no reasonable probability—indeed, no possibility—that any such payment can be made hereafter, yet none of the relief sought by this bill can be granted without the consent of that infant. As the infant is not sui juris, he is, of course, Incapable of giving a consent upon which the action of the court in making a decree under this bill could be supported. The guardian ad litem has no power either to give or to withhold such a consent. But a court of equity is not hampered in the administration of relief, in a proper case, by the inability of an infant to give consent to its action. Thus, where an infant, if adult, would be bound to make an election, the court may defer the question of election until he becomes of age, if it can be done without prejudice to the rights of other parties, but will ordinarily make Inquirywhether it is to the infant's interest to elect, and what election should be made, and will thereon make an election in the infant's behalf. Pom. Eq. Jur. § 509; Streatfield v. Streatfield, 1 White & Tudor, L. O. Eq. 225, and notes.

If, in the case before us, consent is necessary, and can be given by the court in the infant's behalf, it would seem to be inequitable to stay the hand of the court until this infant becomes of age, because the long delay will not only injure the infant objecting, but the other infant beneficiary who submits himself to the judgment of the court, and would also operate injuriously upon the residuary beneficiary. Upon the pleadings and proofs, I deem it my duty to determine (1) whether this court is possessed of power to grant the specific relief prayed for, or any part of it, of any germane relief under the prayer of the bill; and (2) whether, if the court possess such power, it should refrain from exercising it because of the infancy of two of the beneficiaries under this trust.

Before addressing myself to these inquiries, it is proper to state that the interests of the infant beneficiaries are not correctly called "annuities." An annuity arises upon the grant of a yearly sum, with the payment of which the grantor has charged himself, and would have been liable at the common law to a writ of annuity. Co. Lift. 144, E. Here is no bequest of an annual sum, under which the executors might be required to set aside a fund sufficient to raise such sum. The infants' interests are created and fixed by the terms of the trust. They are not entitled to a fixed annual sum at all events, but only to an annual sum if the income of the fund in each year permits. Therefore, if in any year the income does not suffice to pay the whole or any part of the annual sum, the trustees are without power to make up the deficiency out of the subsequent income. Nor can there be the least pretense that the annual sums are charged upon the principal of the trust fund. Baker v. Baker, 6 H. L. C. 615; Wharton v. Masterson, L. R. App. Cas. [1895] 186. Continued deficiency of income to pay the annual sums will therefore result in a total loss to the infants of the benefit which testator intended them to receive. If the interests of the infants under this trust were strictly annuities, the case would fall within the line of English cases in which the Court of Chancery has required the annuity to be secured, and, after security given, has disposed of the residue. Thus, in Slanning v. Style, 3 P. Wms. 334, upon a will bequeathing an annuity to testator's wife, and charging it upon the personal estate, Lord Talbot decreed the executors to bring into court sufficient of the bonds and securities of the estate to answer the annuity. In re Parry, L R. 42 Chan. Div. 570, North, J., upon a will bequeathing annuities, and then bequeathing the residue of testator's property after payment of the annuities, held that while the annuitants would not be entitled to have the estate converted, and a sum sufficient to answer the annuities invested, they were entitled to have the annuities sufficiently secured; and he decreed that such security should be given by a first mortgage on certain real estate of the testator, which was part of the residue, and, when so secured, that the rest of the income of the estate should be divided among the residuary legatees. A like doctrine has been applied in a well-considered case in New Hampshire. Healy v. Tappan, 45 N. H. 243, 86 Am. Dec. 159. With respect to annuities so secured, the Court of Chancery has, when the income has proved to be insufficient to satisfy the annual payment, required the deficiency to be made up from the subsequent income, or even from the principal. May v. Bennett, 1 Russell, 370; Boyd v. Buckle, 10 Simmons, 595; Booth v. Colton, Law Rep. 5 Chan. App. 684; Baker v. Baker, ubi sup. But the case under consideration is distinguished from those cases, because, as before stated, the infants are not annuitants. Their interest is confined to a share of the income to be paid annually, if the income extends so far. If the income does not suffice for any annual payment, the deficiency does not fall upon any subsequent income or the principal of the fund. The residuary legatee is therefore in no respect concerned in that deficiency. It cannot be required to give security that the income shall be sufficient, and is under no liability if the income never becomes sufficient. The solution of the problem presented in this case must be found in the application of other principles.

Complainants are trustees of a fund of great value. They exhibit and prove a situation in which the fund does not now serve the evident purpose of its creator, in respect, at least, to his infant beneficiaries. They show that there is no reasonable probability that the situation will Improve in the future. It is not too much to say that, in view of the possible and probable increase of municipal impositions by way of taxes and assessments, there is no reasonable expectation of an Improved situation. Under such circumstances, they apply to this court for directions as to their duty. They invoke the action of the court under its well-settled jurisdiction to construe wills and trusts, and to aid executors and trustees by instructions and directions, where necessary and proper. The trustees bring this matter to the attention of the court upon the demand of the residuary legatee, the ultimate beneficiary of testator's bounty under the trust. If complainants yield to this demand, it is evident they will themselves be liable to a charge of a breach of trust. For it is impossible to deny that the course of action requested by the defendant the Metropolitan Museum of Art is not in accord with the apparent intent of the testator expressed in the language set out in the prefatory statement That languageclearly Indicates that testator's intent was that the whole fund, real and personal, should be kept intact in the trust as long as the longest liver of the two infants should survive. What this defendant seeks is that, notwithstanding this intent, the real estate may now, at once, be released from the trust and given to it in immediate possession. As it must be conceded that the defendant has, under the terms of the trust, a present vested interest in the whole fund, this course will only accelerate the purpose intended, and put the residuary beneficiary in a possession to which it must ultimately come. But it must nlso be conceded that this course will alter the scheme of the trust as devised by the testator.

It is not easy to determine what motive actuated the testator to include in this trust both real and personal property which must have been of great value at the time he executed the will and codicil, and which is now worth over half a million dollars, and also to include therein real estate which is unimproved and in a condition which, under the terms of the trust, precludes the possibility of improvement and of any income therefrom. It is clear that his sole purpose could not have been to secure the annual payment of the comparatively paltry sums given to the two infants. His purpose must have had a broader scope. In my judgment, he contemplated that the income from the personal estate, and such of the real estate as produced income, would always be sufficient to satisfy the primary charges imposed thereon by the first subdivision of the second clause of the first codicil, and the annual sums to the two infants directed to be paid by the second subdivision of the same codicil, and that his motive may be inferred to have been to keep the unimproved and nonincome producing real estate in the trust until its termination, when the ultimate beneficiary would receive it, with the benefit of what has been called the "unearned increment."

The residuary beneficiary supports its demand upon the trustees upon the doctrine of a line of cases in the English Court of Chancery. That doctrine is that, when an interest under a will is vested in one who is or becomes sui juris, the court will, upon his demand, put him in immediate possession thereof, notwithstanding the testator postponed his possession to a later period, if it clearly appears that no other person is interested in the property which will be affected thereby. This doctrine seems firmly established in those courts, the leading case of Saunders v. Vautier, Or. & Ph. 243, in which it was first enunciated, having been repeatedly followed and approved. Gosling v. Gosling, 1 Johnson, 265; Re Colson Will, Kay, 133; Coventry v. Coventry, 2 Dr. & Sm. 47; Josselyn v. Josselyn, 9 Sim. 963; Rocke v. Rocke, 9 Bevan, 66; Re Jacobs Will, 29 Bevan, 402; Wharton v. Masterson, ubi sup. If the relief sought for in this case depended upon the application of the doctrine of those cases, I should find serious difficulty in granting it. The infant beneficiaries have an interest in the trust fund during their joint lives, and the survivor of them has such an interest as long as he shall survive. If, under the circumstances disclosed, the interest of the infant beneficiaries may be ignored, the doctrine seems to me, at present, to be in opposition to the rule requiring courts to carry out and effectuate the expressed will of the testator. The doctrine was frankly and forcibly stated by Vice Chancellor Page Wood in Gosling v. Gosling, ubi sup., thus: that the Court of Chancery does not hesitate to strike out of a will any direction that a beneficiary shall not enjoy an interest thereunder until a later period, when the beneficiary has a vested interest, and has become sui juris, and demands immediate possession. This, it seems to me, is substituting the will of the beneficiary for the will of the testator. It cannot, however, be open to doubt that a court of equity, in dealing with trusts, has a right to break in upon and thwart the expressed will of the creator of the trust in some cases. A notable example of such a case is, when the trustee, to whom the creator of the trust has expressly given power of management and control, becomes incompetent, or is misconducting himself, to the peril of the trust and those interested therein, this court has never hesitated to remove such a trustee, and to substitute its own appointee. The reason for such action is evidently necessity, and its purpose is to carry out the expressed intention of the creator of the trust, which intention is imperiled if his appointment of a trustee cannot be revoked for good reasons, and a trustee substituted by the decree of the court. If trustees disclose a situation of their trust in which a slavish adherence to the terms of the trust will operate to wholly prevent the benefits intended by its creator, and they seek instructions and directions as to their duty, I think that instruction and directions for a course of conduct which, though differing from that prescribed by the terms of the trust, will actually carry out the intent of the creator, may well be grounded upon and sustained by the necessity of the case. The benefits intended for the beneficiaries are the main subjects of consideration. The modes in which those benefits may be attained are incidental, and necessity may require a change of mode to produce the intended effect. The power of the court may well be exercised in a case of evident necessity. How far it may extend on other grounds need not be considered.

It is not improper to add that I should find extreme difficulty in applying even the doctrine of necessity to a case where the creator of the trust has plainly disclosed an intent to limit the benefit he intended, by an adherence to a course of conduct expresslymapped out in the management of the trust. In the present ease, if we assume that the testator contemplated a situation such as now confronts the trustees, and made express provision for it, how could it be maintained that any necessity existed requiring the court to direct the trustees to take another course of conduct, on the mere ground that it would be more beneficial than that course which the testator prescribed? I have examined carefully all the cases cited in argument, or which have been discovered by me, on the subject of the power of a court of equity to deal with trusts under circumstances such as are presented in this case I have found none more satisfactory in reasoning and conclusions than those decided in the state of Illinois. In a well-considered case, arising upon a trust created by deed, the court held (the opinion being delivered by Caton, C. J.) that in an emergency which had not been considered by the creator of the trust, and which, if anticipated, would have been provided for, a court of equity might take the place of the creator of the trust, and do what he would have done. This power was placed upon the ground of a necessity to carry out the intent of the trust, when, by unforeseen circumstances, it was not answering the purpose of its creation. Curtiss v. Brown, 29 Ill. 201. Afterward, the same court held that the power of a court of equity to break in upon the terms of a trust, or to change the terms and conditions imposed by its creator, exists only in extreme cases, as, when not to exercise the power, the property held in trust may be lost or wholly fail to answer the purposes of the trust. Voris v. Sloan, 68 Ill. 588. The same court, with more questionable propriety, upheld the jurisdiction of a court of equity to sell lands in which a life tenant or remainderman had respective interests, and to invest the proceeds, when it was made to appear that, unless a court of equity interfered, the property would be lost to both the life tenant and the remainderman, although no trust was involved in that case. Gavin v. Curtin, 171 Ill. 640, 49 N. E. 523, 40 L. R. A. 776. Later the court, while admitting the power of a court of equity to interfere with a trust when the preservation of the subject-matter of the trust, or other like necessity, required interference, limited the power to such cases of necessity, and refused to direct a change of trust property merely to increase income, or to subserve the interest of persons entitled to the income. Johns v. Johns, 172 Ill. 472, 50 N. E. 337.

Recurring to the will and its codicils, for the purpose of determining what was the intent of the testator in respect to this trust and its management, it is plainly apparent that his purpose was to benefit two classes of persons, viz., (1) the two infant beneficiaries, who were each to receive $500 in each year, if the income of the fund should be sufficient therefor; and (2) the Metropolitan Museum of Art, to which the whole fund is to go at the death of the survivor of the two infants. Looking at the provisions of the will and the first codicil, they entirely justify the inference that the testator contemplated and expected that the income from the fund would suffice, not only to discharge the payments required by the first subdivision of the second clause of that codicil, but also to pay the annual sums to the infant beneficiaries under the second subdivision thereof, and that there might be a remainder to be applied by the trustees to the improvement of the property under the third subdivision thereof, and even a balance to be paid to the Metropolitan Museum of Art under the fourth subdivision thereof. Considering the great value of the real and personal property which the testator impressed with this trust, there is another plain inference to be drawn, as before suggested, viz., that testator's intent was that the ultimate beneficiary should receive the whole fund at the death of the surviving infant, with such enhanced value as it might then have.

But there are provisions contained in the third clause of the second codicil which have a bearing upon what was in the contemplation of the testator when he made the final scheme for this trust, and which have given me much difficulty. By that clause it is provided that if at any time the income of the trust fund should be insufficient to "discharge taxes and assessments" upon the real and personal estate in the fund, the deficiency shall be paid out of the income receivable by the Metropolitan Museum under the other provisions of testator's will. Do the provisions of this third codicil justify and require the inference that the testator contemplated that at some future time the income from the trust fund would become constantly insufficient to discharge the annual taxes, and that he intended that in such event the Metropolitan Museum should thereafter pay the deficiency for the life of the surviving beneficiary? It will be perceived that if such intent must be inferred, it produces an alteration of the scheme of the trust previously prescribed. That scheme contemplated and provided for yearly benefits to the infant beneficiaries. The suggested alteration would, when the income proved constantly insufficient to pay the annual taxes, wholly deprive them of any benefit. The original provision provided for possible benefits to the Metropolitan Museum out of the income. The alteration, when the annual taxes constantly exceed the income, would impose a burden on that beneficiary, to continue for an indefinite period, during which it would have no use of the trust fund, or any part of it. An alteration so completely destructive of the whole scheme of the trust ought not to be adopted upon a construction of the second codicil, unless that construction is necessary. If the language of the third clause is reasonably capable of a construction whichwill be in conformity with the previous scheme, I think it should be adopted. It is difficult to conceive that the testator, if he intended so radical a change in the scheme of the trust, would not have expressed it in some more explicit language. If he had said that the ultimate beneficiary should make up the deficiency in the taxes and assessments, imposed on the trust fund, whenever the income of the fund should thereafter become insufficient therefor, such an intent might, perhaps, be found. But, in providing for the making up of such deficiency, he used the words "at any time," which may refer to a single time or single times, and do not suggest the idea of constant and continued deficiency, and, in my judgment, give a clue to the meaning of the testator. Taxes, as is well known, are imposed upon valuations not often changed, although, when changed, usually increased. But assessments are imposed by reason of benefits conferred by municipal improvements, which are not constant, but casual. Now, there is included in this trust a large tract of unimproved real estate in the growing city of Paterson. It must have been in the contemplation of testator that municipal improvements would be made which would occasion assessments to be imposed from time to time upon that property, which assessments, when added to the ordinary yearly taxes, would exhaust the income of the fund. In my judgment, the intent of the testator, discoverable from this clause, when applied to the subject-matter of the trust, was to provide for such casual and intermittent impositions, and that it did not extend to or contemplate the situation with which the trustees are confronted, when the income is insufficient to discharge the ordinary annual taxes, and there is no reasonable ground to suppose it will ever become sufficient for that purpose.

Having reached the conclusion, upon the proofs, that the trustees cannot, under the present circumstances, or any circumstances that can be anticipated, so manage the trust fund as to carry out the plain intentions of the testator, and being of opinion that the circumstances were not within the contemplation of testator, or the subject of any direction in the scheme of the trust as devised by him, I am led to the further conclusion that a case of necessity is presented, requiring the intervention of this court and directions for a change in the management of the trust fund, if by such change the manifest intention of the testator can be practically carried into effect. Nor do I think this court should refrain from intervening in the management of the trust fund because two of the beneficiaries are infants. Under the situation in which the trust is, it is obvious that the provision made for their benefit will be wholly unavailable to them. If, by the intervention of this court and a direction for a change in the management of the trust, the benefit intended for them may be made available and indubitably secured to them, an additional reason for the intervention of the court is disclosed. I entertain no doubt of my power to determine whether such a change would be for their benefit, and. finding it to be for their benefit, to direct such a change.

The trust fund under consideration is so large that it cannot be difficult to formulate some scheme for its management which, with the assent and concurrence of the residuary beneficiary, the Metropolitan Museum, will practically carry out testator's Intentions. But I do not think the matter is so presented that I can now determine what is a proper or judicious scheme. The Metropolitan Museum, by its answer, offers that, if it is permitted to come at once into possession of the real estate included in the fund, freed from the trust, it will accept the same, and relieve the trust fund from any liability for the taxes and assessments, etc., imposed and to be imposed thereon, which now burden and exhaust the income. This would leave in the trust the railroad stocks, now producing an income many times exceeding the annual sums payable to the infant beneficiaries. So long as the dividends from those stocks are paid, the infants' Interests will be protected. On being reminded at the argument that railroad stocks are not securities in which trust funds may be properly invested, the counsel for the Metropolitan Museum offered to give additional security, to be approved by this court, for the complete and adequate protection of the income therefrom, so as to perpetually assure its sufficiency to pay the annual sums due the infants during their respective lives. Such a security ought, of course, to be of a kind which trust funds may be invested in. Some suggestion was made that security might be given upon some part of the real estate of which the Metropolitan Museum seeks the present possession. But if this suggestion be pursued, it is obvious that the material for the formulation of a proper scheme is not before me. The question would involve the consideration of what real estate should be thus mortgaged, and the right of the Metropolitan Museum to execute such a mortgage.

Under these circumstances, I think the cause should be referred to a master to consider and report a scheme for the management of the trust fund upon the lines of the above opinion, so that, upon the coming in and approval of his report, a decree may be made in conformity thereto.