Mullanny v. Nangle

Mr. Justice FIand delivered the opinion of the court: The first question which presents itself for our consideration in this case is, what effect, if any, did the revocation of the appointment of James Healy, and the appointment of John Nangle as executor in his stead, have upon the powers of James Healy as trustee ? The will named James Healy as an executor but did not expressly name him as a trustee. He therefore became trustee by virtue of the fact that certain powers and duties were conferred upon him as executor which did not pertain to the powers and duties of an executor, but belonged to those of a trustee. The powers and duties of an executor and those of a trustee are separate and distinct, and while they are usually performed by different persons, the same persons are occasionally named in wills as both executors and trustees. If a person be expressly named as executor, also as trustee, the revocation of his appointment as executor will not necessarily revoke his appointment as trustee; but where powers and duties are conferred upon a person appointed as executor which do not pertain to the powers and duties of an executor but pertain to those of a trustee, the executor, by virtue of his appointment, becomes a trustee by implication of law, in which event the revocation of his appointment as executor revokes his power to act as trustee, and the duties and powers conferred upon him as an incident to his appointment as executor will terminate upon a revocation of his appointment as executor, unless otherwise provided by the will. In other words, if James Healy had been specifically named as executor, also as trustee, and his appointment as executor alone had been revoked, his powers and duties as trustee would not necessarily have terminated; but as he was named as executor only, and as executor certain powers and duties were conferred upon him which pertained to those of a trustee, upon the revocation of his appointment as executor his right to perform the powers and duties conferred upon him as executor which pertained to the powers and duties of a trustee were terminated. The testator, after revoking the appointment of James Healy as executor, which revoked his appointment as trustee, appointed John Nangle as executor in the place of said James Healy. The powers and duties of Thomas Brenan remained as they were before the appointment of John Nangle, who by the terms of the codicil was appointed' executor to act with Thomas Brenan. If John Nangle was to act with Thomas Brenan, then obviously the powers and duties conferred upon him were intended by the testator to be the same as the powers and duties conferred upon Thomas Brenan, which were the" powers and duties not only of an executor, but also of trustee. After naming John Nangle as executor, the codicil contains the expression “said trustees.” These words clearly refer to Thomas Brénan and John Nangle. We think it clear, therefore, that the testator intended to revoke the appointment of James Healy as executor and trustee and to substitute in his place as executor arid trustee John Nangle, and that the superior and Appellate Courts ruled correctly in holding that by virtue of the appointment of John Nangle as executor he was given the powers and duties of trustee that were originally conferred upon James Healy by the will. The next question presented for our determination is, upon Thomas Brenan declining to qualify as executor and disclaiming as trustee, did the superior court have the right to appoint a successor to Thomas Brenan as trustee to act with John Nangle? The testator appointed two executors by his will, and gave, devised and bequeathed to said executors, or to the survivor of them, so much of his estate as should remain after the payment of his debts, funeral expenses and certain charges and bequests, in trust for the specific purposes named in his will. At the time of the testator’s death his duly nominated and appointed executors were Thomas Brenan and John Nangle, who by implication of law were also the trustees of the residuum of his estate. Thomas Brenan refused to qualify as executor and trustee, whereupon John Nangle qualified as executor, and thereupon became sole executor and trustee of said will and codicils and said estate. The testator, by devising the residue of his estate to his executors or to the survivor of them, showed that he did not intend that there should always be two acting trustees of his estate, otherwise, in case of the death of one of the executors appointed by him, he would not have provided that the survivor should hold in trust the remainder of his' estate, but would have provided for the appointment of a successor to said trustee. Where a testator names two trustees and makes no provision for the appointment of a successor in case one of the trustees dies, resigns or refuses to act, the entire trust devolves upon the trustee who qualifies. (Golder v. Bressler, 105 Ill. 419.) This being true, it is apparent so long as such trustee acts there is no vacancy in the trusteeship. While a court of equity will not allow a trust to fail for want of a trustee, such court cannot rightfully appoint a trustee to administer a trust until there is a vacancy in the trusteeship, and in case a trust is created and more than one trustee is named, the author of the trust has the right to determine whether the failure of one trustee to qualify shall create a vacancy, and in case of a vacancy to determine in what manner it shall be filled. (French v. Northern Trust Co. 197 Ill. 30.) Here the author of the trust appointed two trustees. One, only, qualified. No provision was made for the appointment of a successor, and it is apparent the testator did not intend that the failure of one trustee to qualify should create a vacancy. In such state of case the trust devolved upon the trustee who qualified and there was no vacancy in the trusteeship, and the superior court was without power to appoint a trustee to act for the one who failed to qualify with the one who had qualified. We have looked into the record and are of the opinion the Appellate Court did not err in adjudging the cost in that court and in the trial court against the appellant. The judgment of the Appellate Court will be affirmed. Judgment affirmed. Wilkin and Cartwright, JJ., dissenting.