delivered the opinion of the court:
This was a bill filed in the circuit court of Pike county praying for the appointment of some suitable person, as trustee, to carry out the provisions of the will of William H. Yates, deceased, or if the court should find that Edward Yates had been legally appointed as trustee, that it remove him and appoint some disinterested, competent and suitable person in his stead. To this amended bill a general and special demurrer was filed, which was overruled by the court and leave granted to defendants to answer instanter, and it was ordered that said answer, when filed, should also stand and be considered as such general and special demurrer to the said bill. An answer was therеupon filed denying many of the allegations of the bill, and asserting that said Edward Yates had been legally appointed as trustee and the appointment should be confirmed by the court. The complainants offered to make proof on all questions of fact at issue under the pleadings, but the court refused to receive proof and overruled the objections of complainants to the rendition of judgment upon the bill and answer, a decree being entered in accordance with the finding of the court. From that decree an appeal was prayed and allowed.
The method of pleading appears to have been according to some special code for this particular case. We are aware of no authority justifying such manner of pleading. The court, although allowing an answer -to be filed, seemed to conduct the hearing and enter its decree the same as if the cause had been heard on bill and demurrer and the bill dismissed for want of equity. Whilе counsel for appellants objected to this plan in the court below, the matter here has been presented in the briefs as if the case had been heard on bill and demurrer.
The will of William H. Yates, deceased, involved in this hearing, has heretofore been before this court . for construction. (Orr v. Yates,
It appears from the allegations of the bill that Mary Maria Yates was, at the time this proceeding was instituted, twenty-four years of age, and her mother, Lydia Yates, was still living, and that Jeffersоn Orr, who was named as trustee under the will for the land in question, is now deceased; that on November 10, 1910, a short time previous to his death, under the provision of said will which reads, “I hereby authorize and empower Jefferson Orr, my said trustee, in the event of sickness, failing health, old age, or any other good cause appearing to him, he may appoint some suitable person to execute said trust,” he appointed Edward Yates, of Pittsfield, in Pike county, to execute said trust; that said Orr accounted for the rents for the year 1909 but there has been no accounting of rents for the years 1910 and 1911, and the same have accumulated in the hands of said Orr and his executrix and of said Edward Yates, and that an accounting is desired.
The first question to be considered is, what title was vested in Jefferson Orr by virtue of the will and his acceptance of the trust? A part of the fourth clause of said will reads: “I being desirous of providing a competency for my daughter, Mary Maria Yates, and to create a fund that will not be liable for her dеbts in any manner whatever and that will secure to her a living, I devise to Jefferson Orr, trustee, (certain lands, describing them,) constituting what is commonly known and called the Putz farm, to have and to hold in trust for the sole use and benefit of Mary Maria Yates for and during her natural life, and in the event of the death of the said Mary Maria Yates without child or children оr descendants of child, then to have and to hold for the sole use and benefit of Lydia Yates, my wife, if she shall be living, during her natural life, and at the death of Lydia Yates, my wife, and Mary Maria Yates, my daughter, (if said Mary Maria Yates dies without child or descendants of child,) the fee to said last described tract of land known as the Putz place shall be еqually divided between my brothers and sisters and their heirs and assigns, * * * in equal parts.”
It has long been the settled doctrine in this State that the estate of a trustee in real estate which is. the subject matter of a trust is commensurate with the powers conferred by the trust and the purposes to be effectuated by it. (Lord, v. Comstock,
Appellants contend that the instrument by which Jefferson Orr undertook to appoint Edward Yates his successor was insufficient to divest the legal estate in the land from himself and convey it to Edward Yates as his successor, because it contained no words of conveyance. The creator of a trust has full power to provide for the appointment of a successor or successors in trust in case the original trustee- refuses to act, dies or is removed by a court of competent jurisdiction. (39 Cyc. 271, and cases cited; 1 Perry on Trusts,-—6th ed.—sec. 287, and note.) If no provision is made by him for the appointment of a new trustee, the appointment by a court of chancery does not confer title to the real estate upon the appointee, (West v. Fitz, supra,) but if the substitution of a new trustee is provided for by the author of the trust, either by naming the person to be substituted or' by giving the power of appointment to another, when the provision for succession is duly followed the substituted trustee takes under the will and derives the power to act from the act of the testator. (Leman v. Sherman,
The bill alleges that Edward Yates was not a “suitable person” to be appointed as trustee; that in making this appointment Orr exеrcised the power granted to him by the will arbitrarily and unwisely, and against the knowledge and consent of the cestuis que trust and their known wishes; that the appointment was not made in good faith and in the interest of and to provide a competency for the cestuis que trust, but for the purpose of providing an income for the said trustee and fоr the improvement of the said trust property to benefit the contingent remainder-men; that Edward Yates had a contingent interest as to a remainder in the Putz farm, and his interests were hostile and adverse to the interests of the cestuis que trust; that he has been engaged in litigation concerning this farm with appellants, and that out of this litigation and оn account of other matters much hostility exists between them, which will interfere with the proper management of the estate; that said farm consists of 460 acres of valuable land, and that the trustee should have a practical knowledge of farming and good business judgment; that Edward Yates has no such knowledge of farming and is not a man of еven ordinary business judgment or capacity. The bill further alleges that said Edward Yates was years ago made assignee in a certain voluntary assignment for the benefit of creditors, and that he neglected the management of the property assigned to him and has never settled with the creditors or those entitled to the property.
Thе general rule in the appointment of trustees and their successors is that any proper person may be so appointed, it being necessarily implied that the person is legaily capable of executing the trust. This, however, does not give an arbitrary power to appoint a person “unfit or unsuitable to executе such trust.” (Bowditch v. Bauelos,
The testator in this will did not give' unlimited power to his trustee, Jefferson Orr, to name a successor in trust. In creating the power in the will he had in mind the proper qualifications, for he provided that the person appointed should be a “suitable person to execute said trust.”. As was said in Bailey v. Bailey,
It is conceded by all counsel, as was held in Orr v. Yates, supra, that Edward Yates is a contingent .remainder-man and a large part of this farm may ultimately vest in him or his heirs. Upon an application being made to an English chancery court to appoint a remainder-man as trustee, the chancellor said: “I cannot appoint a person entitled in remainder, as his interest is somewhat opposed to that of the plaintiff. It would be for his advantage to lay out trust money in making improvements on the property, instead of making accumulations for the benefit of the infant.” (In re Paine’s Estate, 33 W. R. [Eng. Ch.] 564.) The same may be said here. The salutary rule that has long governed the appointment of trustees by courts of chancery would not ordinarily justify the appointment by the court of a remainder-man as trustee, and certainly not when that appointment was оpposed by the cestuis que trust. Conceding, for the sake of the argument, that all the other charges in the bill as to Edward Yates’ lack of qualifications are unfounded, we are disposed to hold that while his appointment as trustee by Orr was valid, still that Orr unwisely exercised the discretion vested in him by the will in appointing a remainder-man, and it was the duty of the court of chancery, upon the institution of proper proceedings, to so hold and to remove Yates as trustee. Barker v. Barker, 6 Am. & Eng. Cas. (N. H.) 596, and note.
It is further contended by counsel for appellants that the trial court should have directed the trustee to turn the management of said farm over to appellants under that provision оf the will which reads: “I hereby authorize said trustee to turn the management of said estate over to Mary Maria ¡Yates and Lydia Yates for any period of time that he may deem best. It is a part and condition of this devise to said trustee that no part of the rents or profits or use of said lands shall be applied to the payment of any judgments against the said Mary Maria Yates or on any débt contracted by her, but the sole object and purpose of said devise is to create a fund that shall be kept free from the said Mary Maria Yates’ contracts and judgments against her; that if said trustee shall turn the management of said Putz farm herein devised to the said Mary Maria Yates and Lydia Yates, then said trustee shall not be accountable for the rents and profits in any manner while the same shall be under the management of said Lydia Yates and Mary Maria Yates.” As a general rule, where a power is of a kind that indicates personal confidence in the one selected to exercise it, and may be exercised by him or not, in his personal judgment and discretion, a court of equity will not assume to exercise the discretion, and the power will not ordinarily pass to a successor appointed by the court. (French v. Northern Trust Co.
As we have already held that Edward Yates must be removed and a successor appointed by the court, it is unnecessary for us to discuss the question as to whether the testator intended to transfer this power to the successor in trust named by Orr.
In view of the conclusions reached in this opinion, the decree must be reversed and the cause remanded, with directions to the trial court to remove Edward Yates as trustee and appoint some suitable person to act as trustee under this will on giving a bond in an amount fixed by the court, conditioned for the faithful performance of the duties imposed upon him as such trustee, and to require Edward Yates to account fully to his successor as to all moneys and property received by him and turn over all of said property to his successor before he is finally discharged.
The decree of the circuit court is reversed and the cause remanded for further proceedings in harmony with the views herein expressed.
Reversed and remanded, with directions.