| Mass. | Oct 22, 1880
Under this marriage settlement, no provision is made for the appointment of a trustee or trustees to fill vacancies after the death of Mr. and Mrs. Hibben; and, as the parties interested, or some of them, resided here, and portions of the trust estate were invested in this county, the Probate Court had jurisdiction of the subject matter, and authority to appoint Peck trustee under the marriage settlement. Gen. Sts. c. 100, § 9. This section provides that “ the Probate Court or Supreme Judicial Court shall, after notice to all persons interested, appoint a new trustee.” This imposes a duty on the court of giving such notice, whenever, in the exercise of its jurisdiction on a petition properly before it, a trustee is to be appointed. The statute does not mean that the court acquires jurisdiction by giving the notice; or, in other words, that it has no jurisdiction until after giving notice to all parties interested. The jurisdiction depends upon other considerations. This provision relates to the form of proceeding in making the appointment; and we are of opinion that the regularity of the proceedings cannot be inquired into in this action, on the ground that all the parties in interest did not assent to tl
In Emery v. Hildreth, 2 Gray, 228, the action was by an administrator against a stranger to recover a debt due the estate. The defendant objected to the jurisdiction of the Probate Court, and to the regularity and sufficiency of the appointment of the administrator on several grounds, one of which was, that there was no citation or notice to the next of kin or creditors. But it was held that, the Probate Court having jurisdiction of the subject, the regularity of the proceedings in the appointment could not be drawn in question by the defendant. See Marcy v. Marcy, 6 Met. 360; White v. Clapp, 8 Met. 365, 370; Waters v. Stiekney, 12 Allen, 1. When the Probate Court has no jurisdiction over the subject matter, then the appointment of a trustee is invalid, and a bond given in pursuance thereof cannot be enforced against his sureties. Conant v. Newton, 126 Mass. 105" court="Mass." date_filed="1879-01-07" href="https://app.midpage.ai/document/conant-v-newton-6419472?utm_source=webapp" opinion_id="6419472">126 Mass. 105. Sigourney v. Sibley, 21 Pick. 101, and 22 Pick. 507.
It was said in Shaw v. Paine, 12 Allen, 293, that the appointment of new trustees in that case was not authorized by the statute, because no notice had been given to the parties in interest ; but, as the provisions made by the will for the appointment of new trustees had been strictly followed by the court, the appointment was decided to be good without notice to the parties interested in the trust. The judge of probate therefore did not act under the statute, but under the provisions of the will. The case cannot be regarded as deciding that the jurisdiction of the Probate Court depends in all cases upon giving the notice required by the statute; and that the regularity of its proceedings, as to notice in appointing a trustee, can be questioned collaterally or by the trustee or his sureties.
In People v. Norton, 5 Selden, 176, the facts are substantially the same as in the case at bar. The Court of Chancery in New York, having jurisdiction of the subject matter, removed a trustee, and appointed a new trustee, who gave bond with sureties. The action was brought on the bond against one of the sureties, and he objected that the eestuis que trust had no notice of the appointment. Chief Justice Buggies in dealing with this objection said: “ This is an objection which neither the trustee nor his surety can be allowed to make. Lynch got possession of the
What, upon the facts set forth in the agreed statement, would be the rights of the parties in interest who received no notice, should they deny the validity of the appointment, we are not called on to consider.
Judgment for the penal sum of the bond.