§ 278. If the instrument of trust requires the trustees of a charity to have a particular residence, it is irregular to appoint others not answering that description, provided there are those proper to be trustees. But if it is the custom to appoint such non-residents, the court will not remove them. but will see that vacancies when they occur are properly filled. And, generally, if an irregular appointment has been acquiesced in for a long time, the court will not remove.3 In making the selection, the inquiry is whether the proposed appointment is proper, not whether it is the most proper.1

§ 279. It is laid down in several cases, that if a trustee becomes bankrupt he may be removed,5 or if he becomes insolvent and compounds with his creditors; and this is on the ground that the cestui que trust has a right to have the trust administered by responsible trustees. The English bankrupt act provides, that, if a trustee becomes bankrupt, the chancellor, on petition and due notice, may order the trust estate to be conveyed by the bankrupt, the assignees, and all other persons interested, to such other persons as the chancellor shall think fit, upon the same trusts. Under this statute it has been determined that the court will exercise its discretion whether to remove the bankrupt or not, but that prima facie the bankrupt is to be removed, although he may have obtained his discharge. But the court will not interfere long after

1 Attorney-General v. Cowper, 1 Bro. Ch. 439.

2 Attorney-General v. Daugars, 33 Beav. 621; Attorney-General v. Clifton, 32 Beav. 596; Attorney-General v. Stamford, 1 Phill. 737. Attorney-General v. Cuming, 2 Y. & C. Ch. Ca. 150.

4 Lancaster Charities, 7 Jur. (N. s.) 96.

Bainbrigge v. Blair, 1 Beav. 495; In re Roche, 1 Conn. & Laws 306; Com., &c. v. Archbold, 11 Ir. Eq. 187; Harris v. Harris, 29 Beav. 107.

12 & 13 Vict. c. 106, § 130.

7 Re Roche, 2 Dr. & W. 289; 2 H. L. Ca. 461.

Bainbrigge v. Blair, 1 Beav. 495.

• Ibid.

the bankruptcy to remove the trustee, if he has obtained his discharge. Generally the insolvency or bankruptcy of a trustee does not disqualify him for the trust,2 nor does his bankruptcy affect the trust estate in his hands; and his certificate does not discharge him from fiduciary obligations.3 In the United States trustees are, or may be, required, in the great majority of cases, to give bonds or security for the safety of the trust fund: in all such cases it would seem that the bankruptcy of the trustee would not per se render him removable, unless there was some misconduct that rendered it proper for the court to exercise a sound discretion.

§ 280. In Bogle v. Bogle, the court determined that one who, without compensation and for no definite time, undertook a trust for the benefit of another was entitled to a decree discharging him, when the further care of the property became inconvenient to him. Generally, trustees who have acted are not entitled, as against the trust estate, to refuse at pleasure to continue: they must have some good cause to entitle them to be relieved. If they have received a legacy or other benefit given to them as trustees, they cannot be allowed to retire except for good cause, at least without restoring the legacy. It is a good cause for relief if the cestui que trust incumber and complicate the estate, and embarrass the trustee in the performance of his duties. But where there is no cause for a discharge, except the wish of the

1 Re Bridgman, 1 Dr. & Sm. 164.

6

2 Shryock v. Waggoner, 28 Pa. St. 430; Turner v. Maule, 5 Eng. L. & Eq. 222; Ex parte Watts, 4 Eng. L. & Eq. 67.

Belknap v. Belknap, 5 Allen, 468.

4 3 Allen, 158.

5 Greenwood v. Wakeford, 1 Beav. 576; Cruger v. Halliday, 11 Paige, 314; Jones v. Stockett, 2 Bland, 409; Re Meloney, 2 Jon. & La. 391.

Craig v. Craig, 3 Barb. Ch. 76.

'Howard v. Rhodes, 1 Keen, 481; Coventry v. Coventry, ib. 758; Greenwood v. Wakeford, 1 Beav. 576; Hamilton v. Frye, 2 Moll.

trustee, or his convenience, he ought to pay the costs of the proceeding, and not impose the burden and expense upon the estate; and so if the old trustee is removed for misconduct on his part.2 But if the trustee has a good reason for his discharge, he will be entitled to his costs out of the estate as between solicitor and client.3 Courts of equity, by virtue of their general chancery powers, have jurisdiction to accept the resignation of trustees, or to remove them for cause, and to appoint new trustees; and courts of probate in several States have power by statute to remove and appoint new trustees, whether they are created by will or deed. Proceedings are generally commenced directly for the removal and appointment of trustees; but when a bill or petition is already pending for the administration of the trust, the appointment or removal may be made upon motion in those proceedings. And, further, if the trusts created in an instrument are of such a nature that they can be severed without injury to the estate, courts may allow the trustee to resign a part, and will commit that part to other trustees under proper arrangements for security. But courts will not remove trus

1 Matter of Jones, 4 Sandf. Ch. 615; Howard v. Rhodes, 1 Keen, 581; Courtenay v. Courtenay, 3 Jon. & La. 529.

2 Ex parte Greenhouse, 1 Madd. 92; Howard v. Rhodes, 1 Keen, 581. 8 Coventry v. Coventry, 1 Keen, 758; Taylor v. Glanville, 3 Madd. 176; Curteis v. Chandler, 6 Madd. 123; Greenwood v. Wakeford, 1 Beav. 581.

Bowditch v. Bannelos, 1 Gray, 220; King v. Donnelly, 5 Paige, 46; De Peyster v. Clendining, 8 Paige, 295; Field v. Arrowsmith, 3 Humph. 442; McCosker v. Brady, 1 Barb. Ch. 329; In re Potts, 1 Ash. 340; Matter of Mechanics' Bank, 2 Barb. S. C. 446; Dawson v. Dawson, Rice, Eq. 243; Lee v. Randolf, 2 Hen. & M. 12; In re Eastern R. R. Co. 120 Mass. 412.

5

v. Osborne, 6 Ves. 455; Webb v. Shaftesbury, 7 Ves. 487; v. Roberts, 1 J. & W. 251; Ex parte Potts, 1 Ash. 340. Craig v. Craig, 3 Barb. Ch. 76. But where there is a single power of appointment in the trust instrument, though the estates are of a different description, or are held under a different title, or upon different trusts, there is no authority for dividing the trusts, and appointing different sets of trustees for the different estates or trusts. Cole v. Wade, 16 Ves. 27; Re Anderson, 1 Llo. & Goo. t. Sugd. 29; Curtis v. Smith, 6 Blatch. 537.

tees against their will from one part of the trust, and leave them burdened with the responsibility of the remainder.1

§ 281. If a testator in his will appoint his executor to be a trustee, it is as if different persons had been appointed to each office; 2 a court of equity cannot remove him from the executorship, for courts of probate have exclusive jurisdiction over the appointment and removal of administrators and executors; but if the office of trustee is separate from and independent of the office of executor, a court of equity may remove him from the office of trustee, and leave him to act as executor; or if he has completed his duties as executor, and is holding and administering the estate simply as trustee, a court of equity may remove him.3

§ 282. Courts of equity, having jurisdiction to remove and appoint trustees, may be applied to either by bill or petition; or, if a bill is already pending for administration of

1 Sturges v. Knapp, 31 Vt. 1.

2 Parsons v. Lyman, 5 Blatch. C. C. 170; Perkins v. Lewis, 41 Ala. 649. The fact of qualification as executor by a person named in the will both as executor and trustee, does not of itself prove his acceptance of the office of trustee. Anderson v. Earle, 9 S. C. 460.

3 Wood v. Brown, 34 N. Y. 339; Leggett v. Hunter, 25 Barb. 81; 19 N. Y. 445; Craig v. Craig, 3 Barb. Ch. 76; Matter of Wordsworth, 2 Barb. Ch. 381; Ex parte Dover, 5 Sim. 500; Quackenboss v. Southwick, 41 N. Y. 117.

✦ Bowditch v. Bannelos, 1 Gray, 220, and cases cited last section; Williamson v. Suydam, 6 Wall. 723; Livingston, Pet'r, 34 N. Y. 555. In absence of statutory provision, the weight of authority requires that the proceedings should commence by bill.

5 Mitchell v. Pitner, 15 Ga. 319; Ex parte Knust, 1 Bail. Eq. 489; Ex parte Grenville Academies, 7 Rich. 470; Matter of Van Wyck, 1 Barb. Ch. 565; Ex parte Hussey, 2 Whart. 330; Ex parte Rees, 3 V. &. B. 11; Miller v. Knight, 1 Keen, 129; Barker v. Peile, 2 Dr. & Sm. 340. This matter is mostly regulated by the statutes of the several States. Although proceedings by statute may be originated by petition, yet the proceedings may be by bill. Barker v. Peile, ut supra; Re Foster's Will, 15 Hun (N. Y.), 387; Re Ballou, Pet'r, 11 R. I. 360. In some cases it is said that

the estate, application may be made in those proceedings, by motion.1 All persons interested in the trust may institute proceedings in their own names, but notice should be given to all other parties in interest.2 If the trustee must give security for the fund, notice is within the discretion of the court; but if the trust instrument provides that notice of the proceedings for the appointment of new trustees shall be given to particular persons, the appointment will be irregular if the notice is not given. The cestui que trust and those directly interested may of course originate the suit, and those interested in remainder or reversion may begin proceedings. The trustees may bring the suit against the cestuis que trust; or one or more of several trustees may bring

the right to proceed by petition is confined to cases where there is a breach of the trust. In re Sanford Charity, 2 Mer. 456; Re Livingston, 34 N. Y. 567.

1

v. Osborne, 6 Ves. 455;

v. Roberts, 1 J. & W. 251;

Webb v. Shaftesbury, 7 Ves. 487; Ex parte Potts, 1 Ash. 340.

2 Abbott, Pet'r, 55 Me. 580; Williamson v. Wickersham, 2 Coll. 52; Guion v. Melvin, 69 N. C. 242; Wardle v. Hargreaves, 11 Law Jour. (N. s.) Ch. 126; Henry v. Doctor, 9 Ohio, 49. As to who are parties interested entitled to notice. Bradstreet v. Butterfield, 129 Mass. 339. In Pennsylvania, under an act which provides that proceedings shall be upon petition" by any person interested, whether such interest be immediate or remote," it was held that the interest for such a purpose must be such as will certainly fall into possession sometime; and a bare possibility, dependent on the death of the first taker without issue, is not such an interest as will authorize a citation. Keene's App. 60 Pa. St. 506. But see Hartman's App. 90 Pa. St. 206, under a subsequent statute.

* Matter of Robinson, 37 N. Y. 261.

• Washington, &c. R. R. Co. v. Alexander, &c. R. R. Co. 19 Gratt. 592. 5 Bainbrigge v. Blair, 1 Beav. 495; Bennett v. Honywood, Amb. 708; Buchanan v. Hamilton, 5 Ves. 722; Portsmouth v. Fellows, 5 Madd. 450; Howard v. Rhodes, 1 Keen, 581; Millard v. Eyre, 2 Ves. Jr. 94; In Matter of Smith's Settlement, 2 De G. & Sm. 781; Ex parte Tunno, 1 Bail. Eq. 395.

Finlay v. Howard, 2 Dr. & W. 490; Cooper v. Day, 1 Rich. Eq. 26; Re Livingston, 34 N. Y. 567; Joyce v. Gunnels, 2 Rich. Eq. 260; Re Sheppard, 1 N. R. 76, overruling same case, 10 W. R. 704; s. c. 4 De G., F. & J. 423.

' Coventry v. Coventry, 1 Keen, 758; Greenwood v. Wakeford, 1 Beav. 576.