By the codicil to his will the testator gave to his widow and his heirs at law, other than the appellant William May, the power to remove the latter from the trust which was vested in him by the will and codicil, whenever they found good and sufficient cause so to do, and their resolution to that effect was unanimous. The right to have the trustee removed is one which the heirs, or any one or more of them, would have had through the instrumentality of a court of equity without any such provision in the will. For good and sufficient cause, any one beneficiary, even against the unanimous wish of all the others, might procure the removal of a trustee and the substitution of another in his place by a court of equity. We must assume, therefore, that the testator in this instance intended to vest in the designated heirs a power or a right which they did not have by law; and that power or that right was to determine for themselves, at least in the first instance, without the need of recourse to a court of equity, what should constitute good and sufficient cause for the removal of their trustee, and to effect such removal by their own united action. That this power must not be exercised wantonly, capriciously, or arbitrarily, must of course be conceded. That its exercise is subject to review by a court of equity must also be conceded. But the law which gives a man the right to dispose of his property by will, and which seeks to give effect to every provision of the will that does not contravene some fixed rule or principle of jurisprudence, can find nothing contrary to public policy in the grant of a power that enables beneficiaries to deal summarily with their trustees without being compelled to seek the aid of a court of equity for the purpose. Extraordinary and unusual powers of this kind will, of course, be strictly scrutinized, and their exercise closely supervised in proper cases by the courts. But, as there is no law to prevent or prohibit their creation, we must hold that, with reference to them, a testator's will is entitled to be carried into effect as much as in any other particular.

The power to remove their trustee was vested in the defendants to this cause. The power to determine when there was good and sufficient cause for such removal was necessarily in them also, subject to the restraining power of a court of equity against the abuse of it. They exercised their right to determine that good and sufficient cause existed; they found that there was such cause; and they removed the trustee accordingly. Upon the face of their proceeding, it is beyond question that they acted within the scope of their authority.

But was their action in fact an abuse of their

power, instead of a legitimate exercise of it? Was there good and sufficient cause for the removal of the trustee? Or was the finding by the defendants of such cause a mere pretense for the exercise of arbitrary and unreasonable authority? As we have stated, we will not enter into any investigation of the causes of dissension between the parties, or of the reasonableness or unreasonableness of their respective positions. That there is dissension, bitter and uncompromising, is beyond question. That such dissension precludes intercourse between the parties, is their mutual declaration. If there can be no intercourse between them, no communication of views, their joint execution of their joint trust is an impossibility. The due execution of the trust requires concurrence of action, and consultation preliminary to action. The trusts are all active trusts, in which the judg ment and discretion of both trustees are necessary for their proper execution: and we must suppose that it was to secure this concurrence of action, and to prevent the dissension that would militate against it, that the testator created the power of removal which he called into existence in his codicil. It is not necessary that there should be actual misconduct or moral delinquency on the part of a trustee to justify his removal: any failure, disability, or inability to perform the trust would be sufficient. Hill on Trustees; Story's Equity Jur., Sec. 1287, 1288; Perry on Trusts, Sec.

5 Ct. App.-36

275. And it is also true that mere disagreements do not constitute sufficient cause for the removal of a trustee: for otherwise, the purposes of an appointment might sometimes be frustrated. 1 Perry on Trusts, 276; Forster v. Davies, De G. F. & J. 139. But unquestionably, the existence of dissension, deep seated and irreconcilable, not superinduced for the mere purpose of getting rid of a trustee who is in the faithful performance of his duty, but dissension such as imperils the due and proper execution of the trust, is sufficient to justify the removal of a trustee, even if otherwise the conduct of the trustee is unobjectionable. Story's Equity Jurisprudence, Vol. 2, Sec. 1288; Letterstedt v. Broers, 9 App. Cases, 371, 386; Irvine v. Dunham, 111 U. S. 327; McPherson v. Cox, 96 U. S. 404.

In the case last cited of McPherson v. Cox, in which the Supreme Court of the United States declined to sanction the removal of a trustee, where there was ill will between him and the beneficiary of the trust, that court said: "Where a trustee is charged with an active trust, which gives him some discretionary power over the rights of the cestui que trust, and which brings him into constant personal intercourse with the latter, it may be conceded that the mere existence of strong mutual ill feeling between the parties will, under some circumstances, justify a change by the court." And the court in that case refused to discharge the trustee on the ground that there was no active trust requiring personal intercourse between the parties, and because there was another trustee without whose concurrence and co-operation the objectionable trustee could effect nothing. But the circumstances here are those of an active trust, requiring for its due execution a constant intercourse and constant cooperation between the parties, with the existence of ill will between the appellant and his co-trustee, who is also the present principal beneficiary, as to make co-operation impossible. It is unnecessary to inquire into the causes of the dissension. It is plain that the case has arisen in which the Supreme

Court has said that a change of trustee by the court would be justifiable.

In another case that court has said: "Where there is a failure of suitable trustees to perform a trust, either from accident or from the refusal of the old trustee to act, or from any other cause, courts of equity will appoint new trustees." Irvine v. Dunham, 111 U. S. 327, 334.

It should not be forgotten that this is not a case of original application to a court of equity to remove a trustee, in which a just and sufficient cause for removal must be stated and proved, and in which a court of equity is not quick to seek cause for such removal, but rather an application to the court by the parties in interest to ratify a removal already made by themselves and which they had the express right to make under the testator's will. Ordinarily, the removal of a trustee is to that extent a contravention of the wishes of the creator of the trust, and is justified only because the trust itself is the main thing to be regarded, and the trustee to carry it into effect is of secondary consideration; and the effort of the court is to do that which the person creating the trust must be assumed to have desired to do if he had anticipated the contingency that demanded a change of instrumentality. Here we have a removal made apparently in accordance with the express wishes of a testator, and the court is merely asked to sanction it, because the trustee resists the removal. It is difficult to imagine a case in which the wishes of beneficiaries would be better entitled to respect and recognition by the court than the present, without any reflection on the honor or integrity of the trustee.

It is objected, however, that it was not competent for the donees of the power in this instance to exercise it, after the institution of this suit, without the permission of the court previously had and obtained; and the cases of Webb v. Shaftesbury, 7 Ves. 487, and Jones v. Stockett, 2 Bland, 409, 435, are cited in support of this position. It is probably sufficient answer to this objection to say that the sanction

of the court has, in fact, been given to the action of the parties, and that the action of the court in giving that sancction is not in itself a proper subject for review by us.

It is also objected that the action of the parties in the matter of the removal of the trustee was irregular, for the reason that Frederick May did not participate in it except by power of attorney given to his mother, and that the case was one of discretion in which there could be no delegation by power of attorney. This we deem it entirely unnecessary to determine, inasmuch as Frederick May subsequently ratified the removal, and the filing of the cross bill, and all that had been done in the premises; and there is no reason to suppose that the unanimous resolution required for the removal of the trustee might not be the result of correspondence, or might not have been reached in some other way than by the corporeal presence of all the parties meeting in conclave to deliberate upon the subject.

We find no reason to dissent from the action of the court below in directing the appellant to surrender the estate to the substituted trustee, and to settle his accounts, and in restraining him from further interference with the trust.

3. Error is assigned, also, upon the direction given by the court below for the settlement of the trustee's account, to the effect that the widow was entitled to be paid the onethird interest which she took under the will, without deduction of interest upon the mortgages upon the trust property. But this assignment of error is not greatly insisted upon by the appellant; and the direction given by the court is so plainly in accordance both with the letter and the spirit of the will that we deem it unnecessary to discuss the question at any length.

On the whole, we are of opinion that the decree of the court below is right, and should be affirmed, with costs. And it is so ordered.

On March 18, 1895, Mr. Davidge and Mr. Gilmor, on behalf of the appellant, filed a motion for an amendment of