the suit against one or more of their cotrustees, joining the cestuis que trust either as plaintiffs or defendants.1 In all public charities the Attorney-General may begin proceedings by information or petition with or without a relator.2 But where a settlor had conveyed property to a trustee for himself for life, and at his decease to his issue according to the statute of distributions, and in case of his dying without issue to his nephews, it was held that the trust was only an implied trust for the nephews; that they had no interest in the express trusts for the settlor for life; and that they could not maintain a petition for the removal of the trustee. And where a cestui que trust drew an order on the trustees in favor of her children, it was held that this did not give the children such an interest in the funds that they were parties to proceedings for the appointment of new trustees. If a trustee retires, allowing a new trustee to be appointed, without communication with the cestui que trust, and a suit is instituted complaining of such appointment, but seeking no relief against such retiring trustee, he is not a necessary party. And if a trustee transfers the property to a new trustee appointed by order of court, he will be bound by the proceedings, though they were irregular and without notice. to him. If some of the cestuis que trust are minors, they ought to have a guardian ad litem, but a new trustee may be appointed. The proceedings ought to be in a court having jurisdiction of the original trust.8

1 Lake v. De Lambert, 4 Ves. 592.

2 Attorney-General v. London, 3 Bro. Ch. 171; Attorney-General v. Stephens, 3 M. & K. 347; Attorney-General v. Clack, 1 Beav. 467; Re Bedford Charity, 2 Swans. 520; Wilson v. Wilson, 2 Keen, 251; Re Fowey's Charities, 4 Beav. 225.

8 In re Livingston, 34 N. Y. 555; Ex parte Brown, Coop. 295. Hawley v. Ross, 7 Paige, 103.

5 Marshall v. Sladden, 7 Hare, 427.

Thomas v. Higham, 1 Bail. Eq. 222.

Hunter v. Gibson, 16 Sim. 158.

Howard v. Gilbert, 39 Ala. 72.

§ 283. If all the parties are sui juris, and consent to the appointment of the new trustee, the court will at once make the appointment, and direct the conveyances to be made.1 But generally it will be referred to a master to report a proper person to be appointed. Upon the coming in of the master's report, exceptions may be taken to it in the usual manner; but the exceptions must be to the unfitness of the person recommended,3 and not that some other one is more fit.4

§ 284. The appointment of a new trustee is not complete until the property is vested in him; therefore the court usually embraces, in the decree appointing a new trustee, a direction for a proper conveyance to be executed to him alone, or to him jointly with the continuing or remaining trustees, by all the requisite parties, whether remaining trustees, or heirs or representatives of the last survivor, or trustees who have been removed from office.5 In some States it is provided by statute, that, upon qualification by the newly appointed trustee, the trust estate shall vest in him in like manner as it had or would have vested in the trustee in whose place he is substituted. It has been determined that no conveyance is necessary where such statutes are in force, but that the trust estate vests immediately upon the appointment, by virtue of the statute, with all the powers and

1 O'Keeffe v. Calthorpe, 1 Atk. 18; Young v. Young, 4 Cranch, C. C. 499.

2 Howard v. Rhodes, 1 Keen, 581; Buchanan v. Hamilton, 5 Ves. 722; Attorney-General v. Stephens, 3 M. & K. 352; Millard v. Eyre, 2 Ves. Jr. 94; Seton's Decrees, 249; Matter of Stuyvesant, 3 Edw. Ch. 229; -v. Roberts, 1 J. & W. 251; Attorney-General v. Clack, 1 Beav. 474; Attorney-General v. Arran, 1 J. & W. 229.

Attorney-General v. Dyson, 2 S. & S. 528.

4 Ibid.

5 O'Keeffe v. Calthorpe, 1 Atk. 18.

• Mass. Public Stat.; Trustees Act, 1850, 12 & 13 Vict. c. 74, §§ 33, 34, 35, 36; Stearly's App. 3 Grant, 270.

And so if the

duties essential to the purposes of the trust. instrument of trust provides for the vesting of the estate in the remaining, surviving or new trustees, upon the removal, resignation, death, and appointment of others, the trust estate will vest according to the provisions of the instrument, as the creator of the trust may mould it at his pleasure.2 It has already been seen that, if one of the trustees disclaims without having acted or accepted the trust, the estate vests in the acting trustees; and if a sole trustee disclaims before acting, the estate vests in the heirs at law subject to the trust. So where a vacancy results from the incapacity of the trustee, or upon his removal from the jurisdiction of the court, the want of power to compel a conveyance, and the necessity of the case, require the court to recognize the power of the remaining trustee to convey to his new cotrustee without a conveyance from the retiring or removed trustee.1 In trusts, that do not come within the words or the spirit of the statute in relation to the vesting of trust estates in new appointees, and in cases where the trust instrument is silent concerning the vesting of the estate in new trustees, and there is no necessity for a departure from the ordinary rule of a conveyance, a conveyance must be made to the new trustee, in order to vest the estate in him.5

§ 285. A trustee may be relieved from his office by the consent of all parties interested, without the decree of a court,

1 Parker v. Converse, 5 Gray, 341; Re Fisher's Will, 1 W. R. 505; Smith v. Smith, 3 Dr. 72; Woolridge v. Planters' Bank, 1 Sneed, 297; Goss v. Singleton, 2 Head, 67; Gibbs v. Marsh, 2 Met. 243, 253; Duffy v. Calvert, 6 Gill, 487; Burdick v. Goddard, 11 R. I. 516.

2 Ellis v. Boston, Hartford, & Erie R. R. 107 Mass. 13; National Webster Bank v. Eldridge, 115 Mass. 424.

8 Ante, § 273.

4 Cape v. Bent, 9 Jur. 653; O'Reiley v. Alderson, 8 Hare, 101; Mennard v. Wilford, 1 Sm. & Gif. 426; Eaton v. Smith, 2 Beav. 236; Cooke v. Crawford, 13 Sim. 91; In re Moravian Soc. 26 Beav. 101.

Folley v. Wontner, 2 Jac. & W. 24; Owen v. Owen, 1 Atk. 496; Foster v. Goree, 4 Ala. 440; Crosby v. Huston, 1 Tex. 203; Miller v. Priddon, 1 De G., M. & G. 339.

even if the instrument of trust is silent upon that subject. But the transaction operates rather as an estoppel of the cestui que trust than as an affirmative transfer of power. Thus, no cestui que trust who concurs in a breach of trust can afterwards call the trustee to an account for the disastrous consequences; therefore, if a trustee conveys the trust estate to another person, and appoints such other person trustee, and all the cestuis que trust execute the conveyances, or otherwise consent to the transaction, they would be forever precluded from holding the retiring trustee responsible for any delegation of his office, or for any loss that occurred afterwards.2 But the trustee must see to it that all the cestuis que trust are parties to the transaction and concur; for, even in the case of a large number of creditors, each individual must act for himself, or he is not estopped, and the consent of a majority cannot affect the rights of one who did not concur.3 The trustee must also see to it that all the cestuis que trust are sui juris, and not married women, infants, or other persons incapable of acting, or of no legal capacity to consent. For if there are such cestuis que trust, there can be no discharge and substitution of trustees without the sanction of the court, in the absence of a power in the instrument of trust; or if there may be parties in interest not yet in existence, as if the trust is for children not yet born, there can be no change of trustees by consent. But a married woman is considered sui juris in respect to her sole and separate estate, where there is no restraint against anticipation or alienation.5

§ 286. If there are two or more trustees named in an instrument of trust with power to appoint successors, and they all

1 Wilkinson v. Parry, 4 Russ. 276.

2 Ibid.

8 Colebrook's Case, cited Ex parte Hughes, 6 Ves. 622; Ex parte Lacy, ib. 628-630, n.

4 Cruger v. Halliday, 11 Paige, 314.

5 Hulme v. Hulme, 1 Bro. Ch. 20; Lewin on Trusts, 540, 541 (5th ed.).

retire at the same time, they ought not to appoint a single trustee only in the place of two or more.1 In such case the settlor has fixed the number which he thinks necessary for the proper administration and safety of the trust fund; and if a single trustee is appointed and wishes to retire, he ought not to appoint a plurality of trustees, for in such a case he ought not to increase the machinery and expense of the trust contrary to the settlor's intention. But the power may be so drawn that several may be put in place of one, or one in the place of several. Thus where a testator appointed two trustees, and the surviving or continuing trustee or trustees were authorized to appoint one or more persons to be trustee or trustees, in the room of the trustee or trustees so dying, &c., the surviving trustee appointed two new trustees, and the appointment was held by the court to be authorized.3 So, three trustees have been appointed in place of two,1 and three have been authorized in place of four,5 and two in place of one, and four in place of five. In another case, one trustee was appointed by the court in place of two.

1 Hulme v. Hulme, 2 M. & K. 682; Mass. Gen. Hospital v. Pick. 445.

And if a

Amory, 12

2 Rex v. Lexdale, 1 Burr. 448; Ex parte Davis, 2 Y. & C. Ch. Ca. 468; 3 Mont. D. & De G. 304.

D'Almaine v. Anderson, Lewin on Trusts, 468 (5th ed.); Hill on Trustees, 182.

Meinertzhagen v. Davis, 1 Col. C. C. 335.

5 Emmet v. Clarke, 3 Gif. 32.

6 Hillman v. Westwood, 3 Eq. R. 142.

7 Corrie v. Byrom, Lewin on Trusts, 468 (5th ed.); Hill on Trustees, 181.

8 Greene v. Borland, 4 Met. 330. In this case the appointment was assented to by all parties, and great stress was laid upon that fact. The court might also have said that the proceedings were in a collateral matter, and that, as long as the appointment by a court having jurisdiction stood unreversed, its validity could not be tried in another and distinct proceeding. The case of Greene v. Borland is not necessarily inconsistent with Mass. Gen. Hospital v. Amory, 12 Pick. 445, decided by the same court. Dixon v. Homer, 12 Cush. 41; Attorney-General v. Barbour, 121 Mass. 568; Hammond v. Granger, 128 Mass. 272.