41 N.Y. 117 | NY | 1869
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *119 By the first clause of the will, the testator makes certain specific bequests to his wife. By the same, he gives to such of his executors as shall qualify, all the residue of his property upon certain specified trusts. By the fourth, after providing for his wife, and the payment of a certain legacy, he directs that the residue of his property be divided into four shares, and that one each of such shares be assigned and conveyed to each of his three daughters, and the remaining share to the wife of his son; and providing, that in case of the death of either before division, leaving descendants, her share should be conveyed to such descendants, and if without having descendants, then such share to be conveyed to the survivors. The testator, by the eighth clause of his will, empowered the executors in their discretion, to sell and convey the whole, or any part of the real estate, at public or private sale, and to mortgage the same. The questions upon the order appealed from are, first, whether the court possessed power upon petition to remove one of the executors, who had qualified, from the above trusts before the duties as executors were closed, and the amounts settled; and if so, whether the power was rightly exercised in the present case. It will be seen, that although the trust powers were conferred upon the same persons who were appointed executors, yet the duties to be performed are separate and distinct. If the appellant be removed from the office of trustee, he may still continue *121 to discharge the duties of executor, close and settle his accounts as such, and discharge himself from all responsibility in both characters by paying over and delivering all money in his hand, c., to the trustees. The counsel for appellant insists that he cannot be removed upon petition, while any duties as executor remain to be performed, and cites, in support of his position, among other cases, In re Van Wyck (1 Barb., Ch. R., 565). In that case it was held that, independent of the statutory provisions upon the subject, a Court of Chancery had no power to discharge a trustee and to appoint another in his place. That the only appropriate proceeding for that purpose was by bill. It was held that when an executor, clothed with trust powers, presented a petition for his discharge, there remaining duties as executor to be performed, such application must be denied. Section 70, p. 730, 1 Revised Statutes, provides that upon petition or bill of any person interested in the execution of a trust, and under such regulations, as for that purpose shall be established, the Supreme Court (formerly Chancery) may remove any trustee who shall have violated or threatened to violate his trust, or who shall be insolvent, or whose insolvency shall be apprehended, or who for any other cause shall be deemed an unsuitable person to execute the trust. Section 71 empowers the court to appoint a new trustee in place of a trustee resigned or removed. Section 72 limits the last two sections to cases of express trusts only. It will be seen by reference to the will that the trusts in the present case are express trusts. Hence the above sections, are applicable. In Leggett v. Hunter, it was held by this court, that these sections were applicable to an executor and trustee under a will, where the duties of the executor had been fully performed, and all the remaining duties were those of a trustee. If this be so, I can see no reason why such a person may not, under the same sections, be removed as trustee, leaving him in the exercise of his powers and to discharge the duties of an executor, when the powers and duties are separate and distinct, as in the present case. *122
The court having the power, it remains to consider whether it was properly exercised in the removal of the appellant. That removal was upon the ground that he was deemed an unsuitable person to execute the trust. If this ground is sustained, it must be on account of the personal relations of the two acting executors and trustees and of the relations of the appellant to those interested in the estate, and not upon the ground of any defect of capacity or integrity, as there is no charge of the latter. The case shows that there had been some differences of opinion between the trustees relative to selling certain portions of the real estate. These differences furnish no more ground for the removal of one than of the other, and I think none for the removal of either. It will be seen from the will that a division of the property into shares, and conveying to each devisee her share, was made the imperative duty of the trustees, while a discretionary power of selling, conveying, c., was conferred. Under these circumstances, if both of the trustees could not concur in selling the real estate, it was their duty to at once proceed to a division, if practicable (and there is nothing showing that it was not), and close up the estate, by conveying to the devisees as required by the trust. But it does appear that the relations between the appellant and his co-trustee, Quackenboss, are such that they will not probably co-operate in closing the trust beneficially to those interested in the estate. It is not very material to inquire how such relations originated, or by whose fault, unless such inquiry should of itself disclose that the conduct of one had been such as to render him disqualified to act as trustee. It is sufficient, to ascertain the fact, to warrant the removal of one and the appointment of another in his place, to secure the faithful performance of the trust. In determining which should be removed, it is highly proper to consult the wishes of those interested in the estate, when, as in the present case, they are mostly sui juris, capable of understanding their interest and managing their affairs. In the present case, it appears, that those who are the beneficial owners of seven-eighths *123 of the estate are of this class, and that they all concur in asking the removal of the appellant and the appointment of Mr. Dibble as trustee in his place, while the owner of the remaining eighth is the minor son of the co-trustee. Under these circumstances, I think the removal of the appellant was proper.
The order appealed from should be affirmed.
All the judges concurring, except HUNT, Ch. J., and LOTT, J., who were for reversal.
Order affirmed.
