Resignation of Testamentary Trustee. A testamentary trustee may, under certain circumstances, resign and be discharged in the Surrogates' Courts,58 or in the Supreme Court.59 Compensation of Trustees. Although trustees who serve to the end of a trust are entitled to the statutory compensation, where a trustee is permitted to resign before completion of the trust, he must accept the discharge on such terms as the court in its discretion imposes.60 Removal of Trustee. The Court of Chancery had, independently of statute, jurisdiction to remove trustees who became disqualified 61 or who had misbehaved.62 The Revised Statutes in this respect did not confer a new judicial power, but declared the pre-existing law. Under the Constitution of 1846 64 the Supreme Court received the jurisdiction in equity formerly exercised by the chancellors.65 The removal of any trustee may be obtained in a proceeding based on a petition to the Supreme Court, or in an action,67 if property questions are at issue. 66 Removal of Testamentary Trustees. Testamentary trustees may be removed under certain circumstances by the surrogates.68 Where the same person is both executor and trustee he may be removed 58 Code Civ. Proc., 2814; chap. 359, Laws of 1870; chap. 406, Laws of 1879; Matter of Abbott, 39 Misc. Rep. 760. 59 Matter of Cutting, 49 App. Div. 388. 60 Matter of Allen, 96 N. Y. 327; Parker v. Allen, 36 N. Y. St. Rep. 671; s. c., 14 N. Y. Supp. 265. 61 Lake v. De Lambert, 4 Ves. 492; May v. May, 167 U. S. 324. 62 Ex parte Reynolds, 5 Ves. 707; Millard v. Eyre, 2 Ves. Jr. 94; Story, Eq. Juris., 88 1287, 1289; Hill, Trustees, 191; The People v. Norton, 9 N. Y. 176; Disbrow v. Disbrow, 46 App. Div. 111. 63 In the Matter of the Mechanics' Bank, 2 Barb. 446; Wood v. Brown, 34 N. Y. 337, 341; cf. Revisers' note with 1 R. S. 730, § 69. 64 Const. of 1846, art. VI. 65 Const. of 1894, art. VI; 2 R. S. 173, 36; chap. 280, Laws of 1847; Onderdonk v. Mott, 34 Barb. 106; 66 § 112, supra; Quackenboss v. Southwick, 41 N. Y. 117; Matter of Livingston, 34 id. 355; Bronson v. Bronson, 48 How. Pr. 481; Matter of Cutting, 49 App. Div. 388, 391; Matter of Baltes, 51 id. 491. 67 § 112, supra; Matter of Cutting, 49 App. Div. 388, 391; Matter of Baltes, 51 id. 491; Leggett v. Hunter, 19 N. Y. 445; cf. In re Van Wyck, I Barb. Ch. 565; King v. Donnelly, 5 Paige, 46, as to old practice. 68 Chap. 482, Laws of 1871; Code Civ. Proc., §§ 2817, 2818; Matter of McGillivray, 138 N. Y. 308; Matter of Havemeyer, 3 App. Div. 519; Matter of Smith, 26 N. Y. St. Rep. 235: s. c., 7 N. Y. Supp. 327; Matter of Scott, 49 App Div. 130; Matter of Mallon, 38 Misc. Rep. 27. from his trusteeship by the Supreme Court, even though his duties of executor are not ended or disturbed.69 The removal of a mere executor is not concurrent, but is vested exclusively in the surroin the first instance.70 Causes of 'Removal. A trustee will not be removed for every violation of duty or even breach of trust, if the fund is in no danger. The power of removal of trustees appointed by deed or will ought to be exercised sparingly by the court." But where trustees are unsuitable persons, irreconcilable or hostile to the purposes of the trust, they may be removed,72 and so if they do acts, not authorized, through a want of understanding.73 They cannot defend against removal by objecting to the validity of the trust deed.74 Appointment of New Trustee. The jurisdiction of the Court of Chancery, before the Revised Statutes, extended to both the removal and the appointment of new trustees." Under this section the present judicial power is explicit,76 but it should be exercised upon notice.77 The power to remove does not extend to a case where a sole surviving trustee dies and the estate devolves on the court to execute the trust under the preceding section of this act.78 Appointment by Surrogate. Where a sole testamentary trustee dies, becomes lunatic, or is removed or allowed to resign, the surrogates also have the jurisdiction to appoint a successor trustee." 79 75 Section 112 Does not Apply to Implied or Constructive Trusts. This section has no application to trustees of implied 80 or constructive 81 trusts.82 69 Quackenboss v. Southwick, 41 N. Y. 117; cf. Wood v. Brown, 34 id. 337, 340; Leggett v. Hunter, 25 Barb. 81; s. c., 19 N. Y. 445. 70 Greenland v. Waddell, 116 N. Y. at p. 243. 71 Elias v. Schweyer, 13 App. Div. 336, 340; Dow v. Dow, 45 N. Y. St. Rep. 5; s. c., 18 N. Y. Supp. 222; cf. Matter of Petition of Morgan, 63 Barb. 621; Matter of Rothang, 51 Misc. Rep. 548; Wiggins v. Burr, 54 id. 149; Matter of Warren, 125 App. Div. 169; Matter of Thierot, 117 id. €86. 72 Disbrow v. Disbrow, 46 App. Div. 11, and cases there cited. 73 Deen v. Cozzens, 7 Robt. 178. 74 Jones v. Butler, 30 Barb. 641. 75 Supra, p. 535; People v. Norton, 9 N. Y. 176. 76 Quackenboss v. Southwick, 41 N. Y. 117, 121; cf. May v. May, 167 U. S. 310, as to general equitable power of courts. 77 Matter of Welch, 20 App. Div. 412; Matter of Bartello, 109 id. 586; Matter of Wetmore, 113 id. 232. 78 § III; Brater v. Hopper, 77 Hun, 244; cf. as to trustees of personalty, $ 20, Fowler, Pers. Prop. Law (2d ed.) 79 Code Civ. Proc., § 2818; Bascom v. Weed, 53 Misc. Rep. 499, 512; Matter of Brady, 58 id. 108. SO Implied trusts, supra, p. 430. 430. 82 Matter of Livingston, 34 N. Y. 555; Quackenboss v. Southwick, 41 id. 117, 121. Trust Cannot Fail for Want of a Designated Trustee. never allowed to fail for want of a trustee,83 a case may arise, not under this section, where all the persons named as trustees are absent, or refuse to accept the office. In such a case the Supreme Court, under its general jurisdiction, has power to execute the trust or to appoint new trustees; so it has in a case where the settlor fails to nominate any trustee.85 But where a nominee renounces and never accepts a trust, it seems he cannot recall his renunciation but must be reappointed de novo.86 84 Conveyance from Outgoing Trustee. How far a conveyance from an outgoing trustee to one designated by an order of the Supreme Court as his successor, is now necessary in order to carry the legal title to the new trustee, is not declared in this statute. At common law "an order or decree of the Court of Chancery (appointing a new trustee) did not have the effect to transfer the legal title to land or real estate." 87 To remedy the inconvenience attached to this rule, the so-called "vesting acts" were passed in England,88 generally dispensing with an actual conveyance. Formerly the practice in New York was to have the outgoing trustee convey to his successor,89 and not to rely solely on an order or judgment of the court substituting one trustee for another. But it seems now to be assumed oftentimes, that the order substituting one trustee for another is sufficient to carry title without any conveyance from the outgoing trustee.90 Where a sole trustee dies the statute vests the estate in the court under the 11th section of this act; that section is a vesting act. 83 McCartee v. Orphan Asylum, 9 Cow. at p. 484; Downing v. Marshall, 23 N. Y. at p. 382; Levy v. Levy, 33 id. at p. 102; Holland v. Alcock, 108 id. at p. 330; Kirk v. Kirk, 125 id. 506; Rose v. Hatch, id. 427; Cross v. U. S. Trust Co., 131 id. 330, 350; Woodward v. James, 115 id. 346, 357; Greenland v. Waddell, 116 id. 234, 242. 84 King v. Donnelly, 5 Paige, 46; Rogers v. Rogers, III N. Y. 228; Greenland v. Waddell, 116 id. 234, 242; Kirk v. Kirk, 137 id. 510. 85 De Barante v. Gott, 6 Barb. 492. 86 In the Matter of Van Schoonhoven, 5 Paige, 559. 87 Williams, Real Prop. 172; Lewin, Trusts (1st ed.), 602 et seq.; per Walworth, C., In the Matter of Van Wyck, 1 Barb. Ch. 569, 570; 887 Anne, chap. 19; 6 Geo. IV, chap. 16; 11 id., chap. 60, and many similar acts of later date; 15 & 10 Vict., chap. 55, §§ 8, 9; 13 & 14 id.. chap. 60. See Williams, Real Prop. 172. 89 Leggett v. Hunter, 19 N. Y. at p. 448; Perry, Trusts, § 284. 99 Cf. $ 109, supra, as to estate of outgoing trustee, and Farrar v. McCue, 89 N. Y. at p. 144; Coster v. Coster, 109 N. Y. Supp. 798, 800. Where the concur When Trustee's Act Requires Concurrence of All. rent decision or action by two or more trustees is directed by a settlor of an estate, part of the trustees cannot do the act, and on the removal of one, his place must be supplied.91 Power of Sale, if Imperative. Passes to New Trustee; Otherwise if Discretionary. If a power of sale is discretionary, it does not pass to an administrator with the will annexed; otherwise if imperative.92 Discretionary Trusts. How far a trust is valid when material elements of it are left to the discretion of a trustee or trustees is variously decided, according to the nature of the confidence.93 But in any event, if the discretion is personal, it does not pass to a new trustee.94 91 Per Walworth, C., In the Matter of Van Wyck, 1 Barb. Ch. 569, 570; cited, Greenland v. Waddell, 116 N. Y. at p. 243; cf. § 2462, Code Civ. Proc.; Burrell v. Sheil, 2 Barb. 457; King v. Donnelly, 5 Paige, 46; Draper v. Montgomery, 108 App. Div. 63; Bascom v. Weed, 53 Misc. Rep. 499, 512. 92 Greenland v. Waddell, 116 N. Y. 234, 240; Mott v. Ackerman, 92 id. 539, 553, 554; Ayers v. Courvoisier, 101 App. Div, 97; Dexter v. Watson, 54 Misc. Rep. 484; Smith v. Floyd, 56 id. 196; Weeks v. Frankel, 128 App. Div. 223; cf. Kent v. Shepard, 115 id. 64. See below, under §§ 166 and 182, Real Prop. Law. 93 Benedict v. Dunning, 110 App. Div. 303, and cases cited, note 42, p. 453, supra, and see pp. 483, 531, supra. 94 Benedict v. Dunning, 110 App. Div. 303, and case there cited, p. 306; Smith v. Floyd, 56 Misc. Rep. 196, 124 App. Div. 277. § 113. Grants and devises of real property for charitable purposes. 1. No gift, grant or devise to religious, educational, charitable or benevolent uses, which shall in other respects be valid under the laws of this state, shall be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same. If in the instrument creating such a gift, grant, or devise there is a trustee named to execute the same, the legal title to the lands or property given, granted, or devised for such purposes shall vest in such trustee. If no person be named as trustee then the title to such lands or property shall vest in the supreme court. 2. The supreme court shall have control over gifts, grants and devises in all cases provided for by subdivision one of this section, and whenever it shall appear to the court that circumstances have so changed since the execution of an instrument containing a gift, grant or devise to religious, educational, charitable or benevolent uses as to render impracticable or impossible a literal compliance with the terms of such instrument, the court may, upon the application of the trustee or of the person or corporation having the custody of the property, and upon such notice as the court shall direct, make an order directing that such gift, grant or devise shall be administered or expended in such manner as in the judgment of the court will most effectually accomplish the general purpose of the instrument, without regard to and free from any specific restriction, limitation or direction contained therein; provided, however, that no such order shall be made without the consent of the donor or grantor of the property, if he be living." 95 3. The attorney-general shall represent the beneficiaries in all such cases, and it shall be his duty to enforce such trusts by proper proceedings in the courts. Formerly section 93, Real Property Law of 1896, chapter XLVI, General Laws: § 93. Grants and devises of real property for charitable purposes.— A conveyance or devise of real property for religious, educational, charitable 95 As amended by chap. 144, Laws of 1909. See below, p. 541. |
