79 Iowa 410 | Iowa | 1890
I. The only question presented in argument is whether thé district court had authority to remove Huble and Sevcik, and appoint the petitioners. Appellant’s contention is that Huble and Sevcik are not trustees, but legatees, and therefore the court had no authority to remove them, nor to designate others to occupy their place, under the will. In Perry v. Drury, 56 Iowa, 60, the will under notice contained bequests to the “trustees of funds and donations for the diocese of Iowa,” and to the “bishop of the diocese of Iowa,” in which it is expressed as being “in trust” for purposes named. In the bequest to the board of missions it is directed that “the said sum shall be invested by the board, and the interest accruing therefrom each year shall be applied by the said board in the support of missions in the diocese of Iowa.” These trustees, board and bishop petitioned the court for an order on
It will be seen, from what we have stated, that the bequests in that will and in this are identical, so far as it affects the relations of the persons named in the wills. In that case the court says : “ Two classes of persons may take personal property under a will. The first class includes those who take property to hold for a determinate period, and at the expiration thereof it is to be transferred to the beneficiaries under the will. Such persons are in no sense legatees. They are merely trustees. The other class includes those to whom personal property is bequeathed, and who are charged with certain trust duties in respect thereto. They are, in fact, legatees charged with executing the benevolent or other purposes of the testator. Considered in their relations to the testator and the will,’ they are legatees. Regarded in their relations to the beneficiaries of the property which they take under the will, they are charged with trust duties. But they cannot be called trustees without words of qualification. They take the property as legatees, and in their relations to the will, and in the settlement' of the estate, are known and designated as such. The plaintiffs belong to the second class above designated, and in the proceedings relating to the estate in the probate court are to be regarded and designated as ‘legatees,5 and notas ‘trustees.5 They do not, therefore, come within the provisions of Code, section 2350.”
It cannot be questioned but that under said section 2350 the courts have power to remove trustees appointed