142 Ala. 163 | Ala. | 1904
The appeal in this cause is from a decree appointing a successor to Joseph Whitehead, deceased, who was appointed trustee by the will of his father, imposing upon him active duties to perform, and who before his death accepted the trust and entered upon the discharge of those duties.
No provision was made by the will for the appointment of his successor. In other words, no power was con
As said hy Mr. Beach in his work on Trusts and Trustees (§ 368) : “The power to appoint a successor is not inherent to the office of a trustee. But the trustee of an' express trust may be invested with this power by the settler or creator of the trust. When a trust is created by a deed or will, the trustees may be empowered to appoint their successors, but the power must be conferred by the instrument by which the trust was created. A trustee can delegate his power only as he is authorized to do it by the instrument creating the trust.”
But it is said by appellants’ counsel that the legal ti-tie to the trust estate was in the trustee and under his will his executrix succeeded to his right to administer it, notwithstanding he was not clothed with the authority by the instrument appointing him to name his successor.
To answer this contention we need only refer to section 1044 of the Code which provides that “upon the death of a sole or surviving trustee of an express trust, the trust estate does not descend to his heirs or pass to his personal representatives.”
It is next insisted that as appellant is the widow of the testator, she is entitled to be preferred in the appointment of the successor to administer the trust estate.
The statute conferring preferences in the matter of granting letters of administration have no application here. The jurisdiction of the court to malee the appointment is not challenged. And indeed, cannot be.
“It is a maxim of equity that no trust can be permitted to fail for lack of a trustee, and courts of equity have full authority to supplv any lack of this character.”— 1 Beach on Trusts and Trustees, § 252:
What Ave have said disposes of all contentions made in brief of appellants’ counsel.
Affirmed.