In re Wadsworth

The Chancellor. The common law has made no provision for the execution of a joint trust by one of the trustees, where the co-trustee, by reason of lunacy or other inability, becomes incompetent to execute the trust. This," therefore, appears to be a proper case for the interposition of the court tc remove the lunatic trustee, under the provisions of the revised statutes; so that the trusts both as to the residuary estate given to the daughter, and as to that given to the grandson of the testator, may be executed, either by the remaining trustee, or by him and such other person as may be substituted in place of the lunatic. So far as relates to the removal of the lunatic trustee from both of these trusts, the case was in readiness foi a hearing before the chancellor previous to the first Monday of July last. And it was also in readiness for the substitution of a new trustee in the place of the lunatic, so far as related to the trust for the benefit of E. Wadsworth. Where a single trust is created it is not competent for the court to remove one of the trustees from a part of the trust, and to appoint another in his place to act with the co-trustee in part only. But in this case, although both trusts were given to the same persons originally, the testator appears to have intended to create separate and distinct' trusts in relation to the portions of the residuary estate conveyed in trust for the use of his daughter and grandson respectively. And both were separate and distinct from the trusts, and trust powers, which the testator intended to confer upon the same persons in their character [385] of executors. Brimmer, therefore, was authorized to decline the trust .attempted to be conferred upon him, as a trustee of •the residuary estate given to the testator’s daughter, and at the same time to accept the trust as to the fourth of the residuary estate.devised and bequeathed to the testator’s grandson; and also to take out letters testamentary.and assume the duties of an executor. So also the lunatic may be removed, as one of the-trustees of each of .the special trusts, without interfering with the trust conferred upon him as one of the executors of the testator’s will. And I think the counsel for the committee is right in supposing that there is nothing in this case rendering it proper for the court to remove the lunatic as one .of .the .executors of his father’s estate; even if the court-of chancery has the power to remove an executor upon a mere .petition, presented by some of the persons interested in.the estate, and without the institution of a suit for ;that purpose; which power is at least doubtful. (See Van Wyck's case, 1 Barb. Ch. Rep. 565.) From the facts admitted by the petitioners it is rendered very ..probable, that the derangement of W. W. Wadsworth .is only temporary; and that he will in time be entirely restored to the possession of his mental faculties, as they existed, previous to the- fall which caused his-lunacy. And the statute has.made ample provision for the case-of the lunacy of one executor.or administrator, where there are others in existence who are competent, to act; by authorizing the latter to proceed- and execute the duty alone. (2 R. S. 78, § 44.) The .petitioner,. J. S. Wadsworth, by the death of one of his co-executors and the lunacy of the other, is for the time being the sole executor of his father’s will, and is authorized alone to execute the trusts thereof. And he may also execute the power.in trust, devised by the testator to his executors, to give conveyances for lands which the testator- had contracted to sell in his lifetime. So much of the petition, therefore, as prays for the removal of the lunatic from the executorship must be denied. But so much thereof as seeks to remove him, as trustee, from each of the special trusts before referred to, must be granted ; as those [386] trusts cannot be executed during his lunacy without removing him as one of the trustees. And as the new trustee, proposed by the petitioners, appears to be competent and responsible, so as to protect not only the interest of the cestui que trust, but also the contingent interest of those whose remainders in fee maybe affected by the power to sell and re-invest the trust property, the order will direct that he be substituted as the trustee, in the place of the lunatic, in relation to the trust of the one-fourth of the testator’s residuary estate devised and bequeathed for the use and benefit of Elizabeth Wadsworth for life. Martin Brimmer, the other trustee of the one-fourth of the testator’s residuary estate devised and bequeathed for the use and benefit of the grandson, was not dead on the first Monday of July last; and the petition, which was presented previous to that time, did not ask for the appointment of a new trustee, in the place of the lunatic, in reference to that trust. If this subsequent event, therefore, renders the appointment of a new trustee in the place of the lunatic desirable, in relation to that trust, the chancellor has no jurisdiction to make that appointment ; but an application for that purpose must be made to the new supreme court. The order therefore will merely direct the removal of the lunatic from that trust, without substituting another in his place; leaving the petitioner J. S. Wadsworth to execute that trust as the sole surviving trustee. But the order must specify that it is to be without .prejudice to the right of Brimmer, the cestui que trust, or his guardian, or any other person interested in the due execution of that trust, hereafter to apply to the supreme court, in equity, to appoint a new trustee in the place of the lunatic who is removed by such order of the chancellor ; the applicant for such appointment giving due notice to the surviving trustee, and to the committee of the lunatic and other persons interested in such appointment. Order accordingly.