Ex parte Jordan

4 Del. Ch. 615

• Court: Court of Chancery of Delaware
• Decided: June 15, 1873
• Status: Published

Opinion

The Chancellor :—

The Court has the authority to order the investment proposed. The power springs from its general jurisdiction over trusts and trust funds. It may direct any investment or re-investment which in its judgment will best pro.mote the interests of the cestuis que trust, having in view both the security and the productiveness of the fund ; and it may, in a proper case, direct the conversion of the fund from real estate into personal estate, or vice versa. The power is, of course, subject to the will of the testator, and cannot be exercised in conflict with any provision or direction of it, expressed or implied.

The authority to convert real estate into personalty, or to invest personal funds in real estate was largely exercised in the English Court of Chancery in the case of infants, who were the subjects of its jurisdiction. 2 Sto. Eq. Jur. Sec. 1357; Ashburton vs. Ashburton, 6 Ves. Jr. 6. The same power has also been exercised in the case of ordinary trusts. In Webb vs. Shaftsbury, 6 Madd. 100. Trustees under a will were permitted, out of personal funds of the cestui que trust, to purchase for his benefit certain real estate contiguous to lands held in trust, and which it would be advantageous to hold therewith. The question whether the purchase could be made without an act of Parliament was adverted to; but the Vice Chancellor, Sir John Leach, considered that he had jurisdiction to make the order without an act. To the same effect is a case in South Carolina, Ex parte Calmes, 1 Hill (S. C.) Ch., 112.

In the present case the proposed investment will be in conflict with no provision of the testator’s will but on the contrary is in harmony with it, since it will restore the fund to the condition of real estate, which was the nature of the trust estate as created by the will. I am at liberty therefore to consider what will be for the interest of the cestuis que trust.

This is, however, an authority to be exercised with caution and only when clearly required for the benefit of all interested. Under the English practice an inquiry is always directed to be made by a master upon whose report the court finally acts. In the present case I shall direct an inquiry by three commissioners, in order to ascertain, first, the value of the unimproved lots in their present condition ; second, what will be their value after the proposed improvements are erected, and third, what will be the rental value of the lots as improved, It can then be safely determined whether the improvement of the lots will at the same time render the trust fund more productive for the party entitled during her life and at least equally secure for those prospectively interested.

A commission was directed ; and, upon its report to the Chancellor, an order was made for the investment of the fund in accordance with the prayer of the petition.