1 Barb. Ch. 565 | New York Court of Chancery | 1846
I infer from the petition in this case, that the executors have not had a final settlement of their accounts, before the surrogate, as to the personal estate of the decedent. And it distinctly appears that they have not, to any considerable extent, executed the power in trust contained in the will, to sell the real, estate or to convert it into money, or securities for money, for the purposes of distribution. It is therefore very doubtful whether the duties which belong to the executors, in their common law character of executors, and those which devolve upon them strictly as trustees, or as powers in trust, can be separated by this court so as to enable this conrt to make any order, upon this petition, which will either discharge the future liability of the petitioner, or authorize the other executors to proceed and execute their duties without his concurrence.
Independent of any statutory provisions on the subject, this court has no power, upon a mere petition, to discharge a trus
Again ; the discharge of the petitioner, without appointing a new trustee in his place, would render it doubtful whether the remaining executors could execute the power in trust to sell the testator’s real estate, so as to give a good title to purchasers. By
The article of the revised statutes relative to uses and trusts, it is true, expressly authorizes this court, in the case of a trust relating to real estate, to accept the resignation of a trustee, and discharge him from the trust upon his own petition ; and also to remove him from his trust for a sufficient cause, upon the petition of any person interested in the execution of the trust, as well as upon a bill filed for that purpose. (1 R. S. 730, § 69, 70.) And the 120th section of the article relative to powers, (Idem, 735,) gives the same authority to the court in relation to
The discharge of the petitioner in the present case, therefore, cannot be granted consistently with the rights of those who are contingently interested in the trust. The petition must be denied.