17 N.Y.S. 91 | N.Y. Sup. Ct. | 1891
One Melancthon L. Seymour by his will appointed the respondent, Mr. O’Hara, his executor and trustee. The trust-estate was to be enjoyed by Mr. Warren B. Sage for life, and upon his death was to go to his (Sage’s) appointees. In case of Mr. Sage’s failure to appoint, the principal of the trust-estate was then to go to Mr. Sage’s lawful issue. Previous to Seymour’s death Mr. Sage was himself executor and trustee under the will of Patience W. Seymour, who gave this same estate to Melancthon L. Seymour for life, and upon his death to his (Melancthon’s) appointees. Sage invested the estate in Connecticut, and in 1886, upon the death of Melancthon, he turned it over to Mr. O’Hara, who has held it ever since. It is now sought to remove O’Hara, in substance because he did not reduce the Connecticut investment, which thus fell into his hands, into cash, and then bring the cash into this state for investment in lawful securities. There are also some other charges, but none of any great moment, and they are substantially to the main charge.
The answer to the main charge is that O’Hara simply continued the Connecticut investment as it came to him from Sage, and that he did so with Sage’s full knowledge and approval. Sage’s denial of such approval is unworthy of serious consideration. He has received the income for upwards of 20 years, and he knew perfectly well where it came from. And why, it may be added, should he have objected to this investment? It was, in fact, an excellent one, and it was producing with unfailing regularity an income of from 5 to 7 per cent, upon the principal sum. It was also an investment of his own choosing, a trust legacy to O’Hara from Sage himself as Patience Seymour’s executor and trustee. For some 20 years this investment was unchanged, but in 1886 the old mortgage was paid off, and a new mortgage was given upon the same property, which was then greatly improved and
The position of Mr. Sage’s children upon this application is, of course, different from that of their father, but even they have made out no case for removal. They have but a contingent interest in the estate; that is, they take only in case their father fails to exercise his power of appointment. But they undoubtedly have a right to demand that the estate shall be invested in authorized securities. It does not follow, however, that because, as against these contingent remainder-men, there has been a technical breach of trust, the trustee is necessarily to be removed. The rule is well stated by Mr. Ferry in his work on Trusts, (section 276:) “Nor will a trustee be removed for every violation of duty, or even breach of the trust, if the fund is in no danger of being lost. The power of removal of trustees appointed by deed or will ought to be exercised sparingly by the courts. There must be a clear necessity for interference to save the trust property. Mere error, or even breach of trust, may not be sufficient; there must be such misconduct as to show want of capacity or of fidelity, putting the trust in jeopardy. ”
It is plain that here there has been no such misconduct as the learned author points out. There has been no lack of capacity or fidelity, and the trust has never been in jeopardy. If these contingent remainder-men had requested a change of securities, it would have been Mr. O’Hara’s duty to comply with their request. Had he refused, their request could have been enforced, and meanwhile Mr. O’Hara would have been chargeable with all loss caused by the unauthorized investment. He might even have been removed, especially if his refusal were willful or in bad faith. But we think these applicants, under all the circumstances, owed it to the trustee to confer with him, to make their complaints and express their wishes, before taking so radical a step as is involved in an application for removal. Mr. O’Hara’s solvency is not questioned, nor is his character. And he states under oath that his financial standing and responsibility are more than sufficient to meet any demand by reason of the premises. The contingent remainder-men have not lost a dollar by reason of the unauthorized investment, nor is there any need of apprehension on that head. Indeed, Mr. O’Hara has not only brought the bulk of the estate into this jurisdiction, but he has filed his account, and asked for a judicial settlement thereof. In fact, he has done everything which an honest and capable man could do to rectify a condition of things which he had every reason to believe was satisfactory to his cestuis que trustent the