opinions contrary to the founder's intentions; or if the trus tee becomes bankrupt,2 or misconducts himself, or deals with the trust fund for his own personal profit and advancement, or commits a breach of trust,5 or refuses to apply and pay over the income as directed, or if he fails to invest as directed, or permits a cotrustee to commit a breach of trust, or if he loans the trust funds on personal security, although the cestui que trust approves of it; or if trustees of a mortgage for the security of bond-holders of a railroad or other corporation refuse to foreclose or take other steps; 10 or if a trustee make a grossly unreasonable claim upon the trust property adverse to the cestui que trust; 11 or if a husband, trustee for his wife, abandons and deserts her or treats her with cruelty; 12 or if a

1 Att'y-Gen. v. Pearson, 7 Sim. 309; Att'y-Gen. v. Shore, ib. 317; Rose v. Crockett, 14 La. An. 811. If individuals pay their own money, and take a deed to themselves in trust for a parish, the courts will not appoint a trustee to fill a vacancy; but if the parish paid the money, the court will appoint. Draper v. Minor, 36 Mo. 290.

2 Bainbrigge v. Blair, 1 Beav. 495; In re Roche, 1 Con. & Laws. 306; Com., &c. v. Archbold, 11 Ir. Eq. 187; Harris v. Harris, 29 Beav. 107; Re Bridgman, 1 Dr. & Sm. 164.

8 Mayor of Coventry v. Att'y-Gen. 7 Bro. P. C. 235; Buckeridge v. Glasse, 1 Cr. & Ph. 126; Thompson v. Thompson, 2 B. Mon. 161; Deen v. Cozzens, 7 Rob. 178.

4 Ex parte Phelps, 9 Mod. 357; Clemens v. Caldwell, 7 B. Mon. 171; Deen v. Cozzens, 7 Rob. 178.

5 Thompson v. Thompson, 2 B. Mon. 161; Mayor of Coventry v. Att'yGen. 7 Bro. P. C. 235; Att'y-Gen. v. Drummond, 1 Dr. & W. 353; 3 Dr. & W. 162; Att'y-Gen. v. Shore, 7 Sim. 309 n.; Ex parte Greenhouse, 1 Madd. 92.

6 Ex parte Potts, 1 Ash. 340.

7 Clemens v. Caldwell, 1 B. Mon. 171; Deen v. Cozzens, 7 Rob. N. Y. 178.

8 Ex parte Reynolds, 5 Ves. 707.

9 Johnson v. Simpson, 9 Barr, 416.

10 Matter of Merchants' Bank, 2 Barb. S. C. 446.

11 Cooper v. Day, 1 Rich. Ch. 26.

12 Boaz v. Boaz, 36 Ala. 334; Fisk v. Stubbs, 30 Ala. 355; Smith v. Oliver, 31 Ala. 139; Abernathy v. Abernathy, 8 Fla. 243.

But if the

may be at

wife deserts the husband without cause, though the husband some fault, it is no cause for removing him as her trustee. Abernathy v. Abernathy, 8 Fla. 243.

municipal corporation, holding property upon special trusts, is abolished; or if a trustee becomes an habitual drunkard; 2 or a lunatic; or if there is any other good cause, as if the trust fund is in danger of being lost for want of care and attention by the trustee,5-in all these and similar cases, the old trustees may be removed, and new ones substituted in their room. And in a suit for the purpose, it will not be impertinent nor scandalous to charge the trustee with misconduct, or to impute to him a corrupt or improper motive, or to allege that his behavior is vindictive towards the cestui que trust; but it will be impertinent, and may be scandalous, to charge general malice or general personal hostility. If the court have jurisdiction of the subject-matter, mere irregularity in the proceedings or in the appointment will not make it void in a collateral proceeding, nor can the regularity of the proceedings or of the appointment be inquired into in a collateral suit; such appointment must stand until it is reversed by a proceeding for the purpose in the same case.

1 Montpelier v. East Montpelier, 29 Vt. 12.

2 Everett v. Prythergch, 12 Sim. 367; Bayles v. Staats, 1 Halst. Ch. 513.

* Matter of Wadsworth, 2 Barb. Ch. 387; Re Fowler, 2 Russ. 449 Anon. 5 Sim. 322.

♦ Piper's App. 20 Pa. St. 67; Franklin v. Hayes, 2 Swan. 521.

5 Jones v. Dougherty, 10 Ga. 273; Harper v. Straws, 14 B. Mon. 57; Holcomb v. Coryell, 1 Beas. 289; Lasley v. Lasley, 1 Duv. 117; and see Commissioners v. Archibald, 11 Ir. Eq. 195, where L. Ch. Brady ably discusses the removal of trustees. In re Bernstein, 3 Redf. (N. Y.) 20. Or if a trustee identifies himself with one of two contending parties in relation to the trust fund. Scott v. Rand et al. 118 Mass. 215. Or is so hostile to his cotrustees as to endanger the execution of the trust. Devasmer v Dunham, 22 Hun (N. Y.), 87. Or is guilty of gross misconduct in execution of a discretionary trust. Babbit v. Babbit, 26 N. J. Eq. 44; Sparhawk v. Sparhawk, 114 Mass. 356.

• Portsmouth v. Fellows, 5 Madd. 450; Parsons v. Jones, 26 Ga. 644.

Budd v. Hiler, 3 Dutch. 43; People v. Norton, 5 Selden, 176; Paules v. Dilley, 9 Gill, 222; Curtis v. Smith, 60 Barb. 9; Howard v. Waters, 19 How. 529; Hodgdon v. Shannon, 44 N. H. 572.

§ 276. It may be stated generally, that if the conduct or circumstances of the trustees are such as to render it very inconvenient, improper, or inexpedient for them to continue in the trust, the court will exercise its discretion and relieve them, and appoint others in their place, as where the trustees were desirous of being discharged, or were incapable through age and infirmity of acting,2 or so disagreed among themselves that they could not act,3 or where cotrustees refuse to act with one of their number, or where the trustees appointed were municipal officers for the time being and are changed yearly, or where a corporation appointed trustee had become subject to a foreign power; in these and the like cases the courts interposed and appointed other trustees. But if there is a controversy, the court will exercise a sound discretion. Mere disagreements between the trustee and cestui que trust will not justify a removal; and if a trustee fails in the discharge of his duties from an honest mistake, or mere misunderstanding of them, or from a misjudgment, it is no ground for removal; and if a trustee in good faith refuses to exercise a purely discretionary power in favor of the estate, as to vary the securities, he will not be removed; nor will

8

6

1 Bogle v. Bogle, 3 Allen, 158; Howard v. Rhodes, 1 Keen, 581; Coventry v. Coventry, ib. 758; Greenwood v. Wakeford, 1 Beav. 576; Hamilton v. Frye, 2 Moll. 458..

2 Gardiner v. Downes, 22 Beav. 395; Bennett v. Honywood, Amb. 710. Bagot v. Bagot, 32 Beav. 509; Uvedale v. Patrick, 2 Ch. Ca. 20.

4 Uvedale v. Patrick, 2 Ch. Ca. 20.

5 Ex parte Blackburne, 1 J. & W. 297; Webb v. Neal, 5 Allen, 575. • Attorney-General v. London, 3 Bro. Ch. 171.

7 Clemens v. Caldwell, 7 B. Mon. 171; Gibbes v. Smith, 2 Rich. Eq. 131; Foster v. Davies, 4 De G., F. & J. 133. Unless the duties of the trustee require an intimate personal intercourse, or the trustee has discretionary power over the cestui que trust. McPherson v. Cox, 96 W. S. 404.

8 In matter of Durfee, 4 R. I. 401; Attorney-General v. Coopers' Co. 19 Ves. 192; Attorney-General v. Caius Coll. 2 Keen, 150; Lathrop v. Smalley, 23 N. J. Eq. 192.

Lee v. Young, 2 Y. & C. Ch. Ca. 532.

he be removed for a mere constructive fraud, as for buying the trust property at his own sale; and where a trust was to take effect in the future upon the happening of a certain event, and in the mean time it was to remain passive, the court refused to interfere, and remove the trustee for an alleged misfeasance. In no case ought the trustee to be removed where there is no danger of a breach of trust, and some of the beneficiaries are satisfied with the management.3 Nor will a trustee be removed for every violation of duty, or even breach of the trust, if the fund is in no danger of being lost.4

§ 277. In removing and substituting trustees, the court does not act arbitrarily, but upon certain general principles, and after a full consideration of the case. Where the trustees are required to give security it will order such notice and to such persons as it sees fit. It always has regard to the wishes of the author of the trust, to be gathered from the instrument of trust; if he has expressed a disapprobation of an individual, the court would refrain from appointing him; and so the court will not appoint a new trustee with a view to the interest of some of the cestuis que trust, for the trustee ought to hold an even hand between all parties, and not favor a particular one. Further, the court has regard to the nature of the trust, and to those instrumentalities by which it can best be carried into execution.6 Accordingly, courts will not substitute trustees upon the mere caprice of the cestui que trust, and without a reasonable cause, and although the instrument of trust or a statute gives the cestui que trust full 1 Webb v. Dietrich, 7 W. & S. 401.

2 Sloo v. Law, 1 Blatch. C. C. 512.

3 Berry v. Williamson, 11 B. Mon. 245.

Lathrop v. Smalley, 23 N. J. Eq. 192; Corlies v. Corlies, ib.

5 Matter of Robinson, 37 N. Y. 271.

In re Tempest, L. R. 1 Ch. 487.

7 O'Keeffe v. Calthorpe, 1 Atk. 18; Pepper v. Tuckey, 2 Jon. & La. 95; Ward v. Dorch, 69 N. C. 279; Bouldin v. Alexander, 15 Wall. 132.

power to remove and appoint other trustees, yet good cause must be shown or the court cannot be put in motion,1 nor will they appoint a trustee out of the jurisdiction without security.2 Thefe is no absolute rule of law that prevents a cestui que trust from being a trustee for himself and others, and the court is sometimes obliged to appoint him; but the arrangement is irregular and sometimes disastrous, and the court will not sanction it if it can be avoided. So a husband may be trustee for a wife, and a wife for a husband, but difficulties frequently grow out of the relation, and the courts have sometimes said that they would not make such appointments.5 In no case will the court remove old trustees and substitute new ones, unless satisfied of the necessity of the removal, and of the fitness of the new trustee proposed. Nor will the court authorize the new trustees to nominate their successors. There was some doubt and difference of practice at first; but it is now settled, except in charities, that the court will not delegate this part of its jurisdiction to new appointees.8

1 Stevenson's App. 59 Pa. St. 101; 68 Pa. St. 101.

2 Ex parte Robert, 2 Strob. 86; Gibson's Case, 1 Bland, 138.

3 Passingham v. Sherborne, 9 Beav. 424; Reid v. Reid, 30 Beav. 388; Ex parte Clutton, 17 Jur. 988; Ex parte Conybeare's Settlement, 1 W. R. 458; Wilding v. Bolder, 21 Beav. 222; Craig v. Hone, 2 Edw. Ch. 554.

4 Tweedy v. Urquhart, 30 Ga. 446; Livingston v. Livingston, 2 Johns. Ch. 541; Bennett v. Davis, 2 P. Wms. 316; Shirley v. Shirley, 9 Paige, 363; Jamison v. Brady, 6 S. & R. 467; Boykin v. Cipples, 2 Hill, Ch. 200; Picquet v. Swann, 4 Mason, 455; Griffith v. Griffith, 5 B. Mon. 113; Gibson's Case, 1 Bland, 138; Watkins v. Jones, 28 Ind. 12; Gardner v. Weeks, 32 Ga. 696.

5 Dean v. Sanford, 9 Rich. Eq. 423. But the court will not appoint the husband trustee, under a trust for the separate use of his wife. Ely v. Burgess, 11 R. I. 115; Ex parte Hunter, Rice, Ch. (S. C.) 294. Joyce v. Joyce, 2 Moll. 276; White v. White, 5 Beav. 221.

7 Lewin on Trusts, 606 (5th ed.).

Bayley v. Mansell, 4 Madd. 226; Brown v. Brown, 3 Y. & C. 395; Bowles v. Weeks, 14 Sim. 591; Oglander v. Oglander, 2 De G. & Sm. 381; Southwell v. Ward, Taml. 314; Holder v. Durbin, 11 Beav. 594; overruling White v. White, 5 Beav. 221.