Cole v. City of Watertown

Cassoday, C. J. At the time of entering the order fixing a time for the determination of the matter of the resignations •of Beurhaus and Wieman and the appointment of their successors, the county judge very properly notified the city and ■Oscar A. Gole in writing of the provision of the will requiring the appointment of two trustees to fill such vacancies, “subject to the approval of the interested parties,” and that they were, such interested parties, and therein suggested to •each of them that they should “agree upon two reliable men to act as trustees” in case such resignations should be accepted, and to propose to the court for such appointment the names of the two persons so agreed upon. Uo such agreement was ever made, or attempted to be made, and the court finds that the two interested parties never consulted nor attempted to consult in regard to such appointment. Instead of doing so, each party, without consulting the other, proposed the names of two persons, regardless of the likes or dislikes of the other party. The county court appointed one of the two persons so proposed by each party. Habhegger, one of the persons so proposed by Osean* A. Gole, was appointed without any objection. The propriety of his appointment, therefore, is not before us for consideration. On the other hand, Oscar A. Gole, at the time of the hearing, expressly ob [138] jected to the appointment of Blumenfeld, who had thus been proposed by the city. The question for determination is-whether the county court was justified in appointing Blumen-feld against such objection and protest. There is no claim that Blumenfeld is not a man of integrity and character and business capacity, and in all respects qualified to perform the duties of such trustee, but for certain reasons he is said to be objectionable to Oscar A. Cole. The-court finds that Blumenfeld has no ill-feeling against Goley and that Gole has “no ground for ill-feeling” against Blu-menfeld. But that is not decisive of the question. Both courts seem to have actei} upon the theory that, if each of the parties had the naming of one of the two persons so appointed, then neither could rightfully object to the person named by the other party, provided he was as well qualified as Blumenfeld was found to be. But such is not the purpose of the law. That purpose is not only to secure competent men of integrity, but also those who will co-operate in a friendly and harmonious manner in the transaction of business which may continue for several years. It is not to secure vigilant representatives of the respective parties interested, but those who will work together for the benefit, not merely of one of such parties, but for the whole estate. This is abundantly shown by authorities cited in the brief of counsel for the appellant. In one of them it was held in England many years ago that: “The discretion which the court exercises in appointing-new trustees is not a mere arbitrary discretion, but is to be-exercised in accordance with certain principles. Among them are the following: . . . Secondly. The court will not. appoint a person with a view to the interest- of some of the cestuis que trustent in opposition to the interest of others. Thirdly. The court will have l’egard to the question whether-the appointment will promote or impede the execution of the-t-rust.” In re Tempest, L. R. 1 Ch. App. Gas. 485, decided in 1866. [139] In that case it was said by Lord Justice Turner in behalf of the court: “I think so for this reason: That it is of the essence of the-duty of every trustee to hold an even hand between the parties-interested under the trust. Every trustee is in duty bound to look to the interests of all, and not of any particular member or class of members of his cestuis que trusientId. 488. In speaking of that decision it was said in a later case by that learned Master of the Eolls, Sir George Jessel: “I find also that although as a rule the court of chancery exercises its discretion in the appointment of new trustees— a discretion, I may say, as regards which I respectfully wish to express ,my cordial assent to what fell from Lord Justice TURNER in the case' of In re Tempest — yet it is not an arbitrary discretion, but to be applied according to settled rules.” Forster v. Abraham, L. R. 17 Eq. Cas. 351, 355—6. The testator seems to have had in mind the harmonious cooperation of the executors and trustees; and so the will -provides, in effect, that, in case any of the persons therein nominated and appointed as executors and trustees should die or refuse to accept the trust, then the county court was thereby authorized and requested to fill the vacancy by appointment,, “subject to the approval of the parties interested in” the estate. In the case of In re Tempest, cited above, one of the trustees died during the life of the testator. By the terms of the will the right to appoint a new trustee was vested in the persons entitled to the surplus rents and profits. They comld not agree in the choice of a trustee. On petition the Master of the Eolls appointed one Mr. Petre against the objection of one of the beneficiaries, not from any personal objection, but because he was connected with and proposed by a branch of the family with which the testator was not on friendly terms, and which he had excluded from the management of his property. On appeal the court reversed and set aside such appointment of Petre, and held, in addition to what has been stated, that “in selecting a person for the office (of trustee) [140] the court will have regard to the wishes of the author of the trust, expressed in, or plainly deduced from, the instrument creating it.” L. R. 1 Ch. App. Cas. 484. The learned Lord Justice on that point said: “I think this rule may he safely laid down, because if the author of the trust has in terms declared that a particular person, or a person filling a particular •character, should not be a trustee of the instrument, there cannot, as I apprehend, be the least doubt that the court would not appoint to the office a person whose appointment was so prohibited, and I do not think that upon a question of this description any distinction can be drawn between express declarations and demonstrated intention." Id. 487. True, as urged by counsel for the city, the language of the will authorizing and requesting the county court to appoint persons to fill vacancies, if strictly construed, would be limited to the filling of vacancies caused by the death or refusal to accept the trust by one or more of the persons nominated in the will. Put, as indicated in the quotation last made, upon questions of this description there is no substantial distinction between the “demonstrated intention” of the testator and an “express declaration” of such intention. In either case the appointment to be made is to be “subject to the approval of the parties interested in” the estate. We are constrained to hold that effect should be given to such intention of the testator fairly deducible from the language of the will. Such ascertainable intention must be enforced. In re Sharland, Kemp v. Rozey, L. R. 1896, 1 Ch. 517; Adams v. Cowen, 177 U. S. 475, 20 Sup. Ct. 668. Of course, neither of the parties can dictate such appointment, nor contumaciously refuse to agree upon the person to be appointed. The county court has a certain discretion to be exercised in accordance with the principles mentioned, but not arbitrarily and contrary to the expressed wish of the testator. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to reverse [141] that part of the order and judgment of the county court which appointed Charles E. Blumenfeld as one of such trustees, and to remand the case to the county court for further proceedings in accordance with this opinion.