In re Morgan

63 Barb. 621 | N.Y. Sup. Ct. | 1872

By the Court, Learned, J.

There is nothing in the report affecting the moral character of the appellant. On the contrary, the referee expressly states his belief that many of the acts complained of are to be traced to a conscientious conviction that they were in the line of his duty. And in the view we take of the matter we may assume that the appellant has intended to discharge the duties of his office with strict fidelity.

We cannot say that, in all cases, the wishes of a cestui que trust shall control the removal or the appointment of a trustee, but in a case like the present, where the cestui que trust is of full age, in every way competent to judge' for herself, and to form an opinion as to what person would be agreeable to her as a trustee, we think that her wishes should have great weight with the court. ■ It is plain that difficulties have arisen among the three trustees, and the cestui que trust sympathises with the two who join in the petition. How the relations between trustees and the cestui que trust must necessarily be intimate. The parties must frequently be brought together in business transactions of a confidential character. It is therefore very important that’there should be full and perfect harmony between them. And as the person really in interest is the cestui que trust, we think that when she is fully capable of deciding for herself, she should be allowed to do so. The trustees have no personal .interest in the matter. They are only charged with a duty, and one which is generally onerous, and poorly compensated.

[First Department, General Term, at New York, November 4, 1872.

With these views, and without expressing any opinion unfavorable to the character or to the integrity of the appellant, we think the order should be affirmed.

Leonard and Learned, Justices.]