Peck, Pierson and Co., Stoutenburgh, Day and Co. v.

446

Pickle v. Auble,

315

Powers' Ex'rs v. Butler's Adm'r,

465

R.

Receivers of the Morris Canal and Banking Co. v. Biddle,

222

Runyon v. Farmers and Mechanics' Bank of New-Brunswick, 480.

Stout, Holmes v.

492

Stoutenburgh, Day and Co. v. Peck, Pierson and Co.

446

Thompson v. Engle,

271

Tichenor v. Dodd,

454

Trenton Delaware Falls Co., Smith v.

Trustees of Theological Seminary, Associate Reformed

505

77

Church v.

V.

Vancleve v. Groves,

330

Vreeland, New-Barbadoes Toll Bridge Co. v.

157

CASES

ADJUDGED IN

THE COURT OF CHANCERY

OF THE STATE OF NEW JERSEY

JANUARY TERM, 1837.

P. DICKERSON, ESQ., CHANCELLor.

MARY O'KILL and others v. ROBERT CAMPBELL.

Upon a devise of real estate to executors in trust to permit a married daugh. ter "to use and occupy the farm and to take the rents, issues and profits thereof to her own use during her natural life, free from any control of her present or any future husband, and not to be in any wise liable for any debt or debts he now owes, or which any future husband may hereafter contract," the court will not, upon the death of the husband, permit the trust to be set aside, or the estate to be conveyed to the cestui que trust. Equity, for satisfactory, sufficient cause, will direct a change of trustees.*

BILL by cestui que trust, entitled to the enjoyment of real estate, and the receipt of the rents and profits for her life, and by the devisees in fee of the remainder, to set aside the trust, and to have the land conveyed by the trustee to the cestui que trust

*The appointment of new trustees is an ordinary remedy enforced by courts of equity in all cases where there is a failure of suitable trustees to perform the trust, either from accident, or from the refusal of the old trustees to act, or from their original or supervenient incapacity to act, or from any 2 Story's Eq. sec. 1287.

other

cause.

[O'Kill et al. v. Campbell.]

for life; and if that relief be denied, then for a change of trustee. Answer by the trustee, being the sole defendant, admitting the charges in the bill, and praying to be discharged from the further execution of the trust, by reason of the multiplicity of his affairs, the infirmities of age, &c.

Hearing on bill and answer.

Frelinghuysen, for complainante.

Defendant pro se.

THE CHANCELLOR. Jaines Jay, deceased, by his last will and testament, dated in the year eighteen hundred and fifteen, devised certain real and personal property, in the county of Bergen, to his executors, in trust, for the use of his daughter, Mary O'Kill, one of the complainants, who at that time was wife to John O'Kill, the father of the other complainants. Robert Campbell, the defendant, is the only surviving executor and trustee named in the will. James Jay, the testator, died soon after making his will; and about the year eighteen hundred and twenty-two, Mary O'Kill obtained a divorce from her husband, John O'Kill. All the children of Mary O'Kill are of age, and have joined as complainants in this bill, which seeks to set aside the trust altogether, and to have the estate conveyed by the defendant to Mary O'Kill, one of the complainants; and if that relief cannot be granted, that the trustee be changed, and some other person-appointed to take charge of the estate, and execute the trusts of said will..

The defendant, in his answer, admits the facts charged in the bill, and expresses his desire to be discharged from the further execution of the trust, by reason of the multiplicity of his own private concerns, and other business, and the infirmities of age which generally accompany the decline of life.

Upon examining the will of James Jay, deceased, it appears that he has devised the property in question to the executors in trust, that they permit his daughter, Mary O'Kill, to use and