William P. Greene & others vs. John Borland, 4 Met. 330

By the Court. The questions in this case arise under the following provisions of the Rev.

Sts. c. 69, § 8 : “ When any person, appointed a trustee, shall decline or resign the trust, &c. if no adequate provision is made, by the will, for supplying such vacancy, the judge of probate shall, after notice to all persons interested, appoint a new trustee, to act alone or jointly with the others, as the case may be ; and every trustee appointed by the judge of probate, by force of this or of the preceding section,” (which provides for the removal of an insane or otherwise incompetent or unsuitable trustee, and the appointment of another in his stead,) “ shall have and exercise the same powers, rights and duties, whether as a sole or a joint trustee, as if he had been originally appointed by the testator ; and the trust estate shall vest in him, in like manner as it did or would have vested in the trustee, in whose place he is substituted.” Two objections are made to the validity of the appointment of Mr.

Quincy as trustee in this case. First, that the probate court should have appointed two trustees in the place of the two who were appointed by the testatrix, and who declined the trust; and that said court had no authority to transfer the trusts to a single trustee : Second, that the defendant was a person interested in said appointment, and should have had legal notice, before the appointment was made, In regard to the first objection, the court are of opinion that the appointment of one trustee was valid. We think the case is distinguishable from that of The General Hospital v. Amory, 12 Pick. 445.

That decision, supposing it correct upon the provisions of St. 1817, c. 190, §§ 39, 40, proceeded on the ground, that the appointment of two trustees, in place of two appointed by the will, one of whom had died, and the other resigned, was required by the cestui que trusts, whose claim was remote, being that of an expectant interest ip the fund, after the termination of a life estate, and who deemed the appointment of two trustees necessary to the protection of their interest. Besides ; the court in that case were strongly inclined to the opinion, that the appointment of two was required by the terms of the will.

In the present case, the appointment of one was made by the assent of all parties interested in the trust. The judge of probate had jurisdiction of the subject matter — that of the appointment of trustees in place of those who declined—being required first to give notice to all persons interested ; and if his power to appoint a single trustee were otherwise doubtful, we think the assent of all persons in interest rendered the appoint ment valid.

In regard to the second objection, the court are of opinion that the defendant was not a person in interest, legally entitled to notice, in order to give validity to this appointment of a trustee. He was co-devisee and legatee under the same will, and was also executor. But he had no interest, directly or indirectly, in this trust. The interests of himself, and of his sister and her children, were entirely distinct.

He had notice in fact, and so far as the judge of probate might derive aid and benefit, in the discharge of his duty, from the suggestions and advice of one nearly connected with the parties, he had an opportunity to offer them, and did offer them. But the point is, that he was not a person in interest, entitled to legal notice, as a condition precedent to the valid appointment of a trustee, under that branch of the will. The court are therefore of opinion, that the defendant, as tenant in common, is bound to account with Mr.

Quincy as trustee and cotenant, for rents and profits collected and received from the estate devised, as prayed for by the bill. Hubbard, J. did not sit in this case.