4 Redf. 521 | N.Y. Sur. Ct. | 1881
The Surrogate.—At common law, the provision made in the will for filling vacancies in the office of trustee is good (Lewin on Trusts, 465; and see Hartnett v. Wandell, 60. N. Y., 346; and Belmont v. O’Brien, 12 Id., 394), and I am not aware of any statute contravening the right of appointment thus conferred upon the widow. The trust may be executed by the surviving trustees even if she should not exercise that right, (Ib., 267, 268.) She now proposes to appoint Judge Gifford to fill a vacancy. She is the donee of the power and
Section 2814 of the Code provides for the voluntary accounting and the resignation of a trustee, and clothes the Surrogate with power to entertain his application or not, in his discretion; if he does, and the account is satisfactory, and on his paying over the funds and delivering the property as the Surrogate directs, his resignation may be accepted. The law of 1879, referred to, confers upon the Surrogate a discretionary power, in case he accept a resignation, to appoint a successor, in which event he shall require a bond. But the proposed appointment is not dependent upon the resignation of either of the present trustees, and if it were, the right of the widow is paramount; and there is no law requiring this court to exact a bond from the person she may select. Section 2818 of the Code provides for the appointment of a successor to a sole testamentary trustee “ unless such an appointment would contravene the express terms of the will,” and does not apply here.
It will thus be seen that while the resignation of Columbus B. Rogers as trustee may be accepted, under section 2814, there is no power to deprive the widow of the right to appoint conferred upon her, and no
' Ordered accordingly.
