2 Del. Ch. 95 | New York Court of Chancery | 1843
Before considering the question whether the party complainant is entitled to an unconditional decree, I will advert to the power or jurisdiction of this Court over the discretion of the party in
In Brown vs. Higgs, 8 Ves. Jr. 570, a distinction is very properly taken by Lord Chancellor Eldon, that “ where there is a mere power of disposing and that power is not executed, this Court cannot execute it. It is equally clear, that whenever a trust is created, and the execution of that trust fails by the death of the trustee or by accident, this Court will execute the trust. But there are not only a mere trust and a mere power, but there is also known to this Court a power which the party to whom it is given is entrusted and requested to execute; and with regard to that species of power the Court consider it as partaking so much of the nature and qualities of a trust, that if the person who has that duty imposed upon him does not discharge it, the Court will to a certain extent discharge the duty in his room and place.” After referring to the several cases establishing the rule, the Chancellor observes, “ the principle of that case (Harding vs. Glyn, 1 Atk. R. 469) and of Richardson vs. Chapman, 5 Bro. Parl. Cas. 400, which went to the House of Lords, and all these cases, is that if the power is a power which it is the duty of the party to execute, made his duty by the will, put upon him as such by the testator, who has given him an interest extensive enough to enable him to discharge it, he is a trustee for the exercise of the power, and not as having a discretion whether he will exercise it or not; and the Court adopts the principle as to trusts, and will not permit his negligence, accident or other circumstances to disappoint the interests of those for whose benefit he is called upon to execute it.”
In the present case the appointment has been made by Samuel Bailey under a power contained in the will authorizing him to appoint “ a suitable person” as trustee, in case of the death of John R. Latimer or his refusing to
A decree was entered to the effect, that upon the execution by the trustee of a bond for the faithful performance of the duties of the trust, with surety to be approved by the Chancellor, the executors of Joseph Bailey, deceased, should deliver to him the trust fund.