successor cannot be found to a retiring trustee, the court may appoint the continuing trustees to be sole trustee or trustees.1

§ 287. The duties and powers of trustees cannot be delegated to others, unless there is express authority for that purpose given in the instrument creating the trust.2 It follows, that a power to appoint new trustees can seldom or never exist, except in express trusts created by deed or will. The person who creates the trust may mould it into whatever form he pleases: he may therefore determine in what manner, in what event, and upon what condition the original trustees may retire and new trustees may be substituted. All this is fully within his power; and he can make any legal provisions which he may think proper for the continuation and succession of trustees during the continuance of the trust. This power to appoint new trustees in place of the original ones can only be given by the author and creator of the trust. For, in cases where courts are called upon to appoint trustees, authority to appoint successors will not be given, but recourse must be had to the courts toties quoties.* There is, however, an exception to this rule in case of charit

1 In re Stokes Trusts, L. R. 13 Eq. 333.

2 Selden v. Vermilyea, 3 Comst. 336; Wilkinson v. Parry, 4 Russ. 272; Adams v. Paynter, 1 Coll. 532; Chalmers v. Bradley, 1 J. & W. 68; Swarez v. Pumpelly, 2 Sandf. Ch. 336; Wilson v. Towle, 36 N. H. 129; Bayley v. Mansell, 4 Madd. 226; Winthrop v. Att'y-Gen'l, 128 Mass. 258.

* Whelan v. Reilly, 3 W. Va. 597. The testator may authorize the trustee appointed by him to appoint his successor by will. Abbott, Pet'r, 55 Me. 580. While the settlor may make such provisions as he may think best for filling vacancies, as a general proposition, yet it has been held that a power reserved to an assignor in a deed of trust for creditors, to appoint new trustees to fill vacancies occurring in the board, was void, as interfering with the rights of creditors. Planck v. Schermerhorn, 3 Barb. Ch. 644; Robins v. Embry, 1 Sm. & M. Ch. 207.

4 Wilson v. Towle, 36 N. H. 129; Oglander v. Oglander, 2 De G. & Sm. 381; Holder v. Durbin, 11 Beav. 594; Bowles v. Weeks, 14 Sim. 591; Bayley v. Mansell, 4 Madd. 226; Southwell v. Ward, Taml. 314. A different

able trusts; for, in such cases, to save costs, and for convenience, courts of equity will not only appoint new trustees to fill vacancies, but they will sanction a scheme for the administration of the charity, which provides for the appointment and succession of trustees without a continual recourse to legal proceedings.1

§ 288. Every well-drawn instrument, creating trusts intended to continue for any considerable time, should contain authority and power for any of the trustees to relinquish the trust, as well as provisions for filling vacancies occasioned by resignation, death, or incapacity. Such provisions save the cost and trouble of constant applications to courts. In framing these powers, great care should be taken to provide for every possible contingency in which a resignation or new appointment may become convenient or necessary. The power should clearly express the cases in which new trustees may be appointed, and embrace every event which can render such an appointment necessary or desirable, as the death of all, any one, or more of the original or substituted trustees, their absence from the country or State, their wish to resign, their original refusal to accept, and their future incapacity or unfitness to discharge the duties; the instrument should also point out clearly and by whom and in what manner the new appointments are to be made. Such provisions are extremely convenient, and save much perplexity, expense, and trouble; and where a settlement is to be drawn up under articles, by the direction of the court, it will order such provisions to be inserted as are just and reasonable. Where it is necessary to

practice was followed in Joyce v. Joyce, 2 Moll. 276; Sampayo v. Gould, 12 Sim. 426, and White v. White, 5 Beav. 221; but these cases are not authorities now. See Brown v. Brown, 3 Y. & C. 395.

1 Attorney-General v. Winchelsea, 3 Bro. Ch. 373; Attorney-General v. Shore, 1 M. & Cr. 394; 12 Sim. 426.

2 Lindow v. Fleetwood, 6 Sim. 152; Brewster v. Angell, 1 J. & W. 628; Sampayo v. Gould, 12 Sim. 426; Belmont v. O'Brien, 2 Kern. 394.

act under the powers thus given in the instrument of trust, it is of the utmost consequence that there should be an exact compliance with the power and authority as given. For if the circumstances do not justify or demand a new appointment, as contemplated in the instrument of trust, or if there is any irregularity as to the persons by whom the new appoint

The following form is approved by both Mr. Lewin and Mr. Hill, as a proper power for the appointment of new trustees:

Provided always, and it is hereby further declared, that if the trustees hereby appointed, or any of them, or any future trustees or trustee hereof, shall die (either before or after their or his acceptance of the trusts thereof), go to reside abroad, desire to be discharged from, renounce, decline, or become incapable or unfit to act in the trusts of these presents, while the same trusts or any of them shall be subsisting, then, and in every or any such cases, and so often as the same shall happen, it shall be lawful for the said (the cestuis que trust [if any] for life), or the survivors of them, by any writing or writings, under their, his, or her hands or hand, attested by two or more witnesses, and after the decease of such survivor, then for the surviving or continuing trustees or trustee hereof, or the executors or administrators of the then last acting trustee (whether such surviving trustees or trustee, or executors or administrators, respectively, shall be willing to act in other respects or not), by any writing or writings, under their or his hands or hand, attested by two or more witnesses, to nominate and substitute any person or persons to be trustee or trustees hereof, in the place of the trustee or trustees so dying, going to reside abroad, desiring to be discharged, renouncing, declining, or becoming incapable or unfit to act as aforesaid. And that, so often as any new trustee or trustees hereof shall be appointed as aforesaid, all the hereditaments, &c., which shall, for the time being, be holden upon the trusts hereof, shall be thereupon conveyed, assigned, and transferred respectively, in such manner that the same may become legally and effectually vested in the acting trustees hereof for the time being, to and for the same uses, and upon the same trusts, and with and subject to the same powers and provisions as are herein declared, and contained of and concerning the same hereditaments and premises respectively, or such of the same uses, trusts, powers, and provisions as shall then be subsisting or incapable of taking effect.

"And that every new trustee, to be from time to time appointed as aforesaid, shall thenceforth be competent in all things to act in the execution of the trusts hereof, as fully and effectually, and with all the same powers and authorities to all purposes whatsoever, as if he had hereby been origi nally appointed a trustee in the place of the trustee to whom he shall, whether immediately or otherwise, succeed."

ment is made, or as to the manner in which it is made, the retiring trustee will still be liable for any breaches of trust which may be committed, and the new trustee will be incapable of exercising any legal authority over the trust property, and will be a trustee only de son tort, if he interfere; and any purchaser of the trust property may find his title utterly worthless. The retiring trustee should be careful not to part with the control of the fund before the new trustee has been actually appointed and qualified, for if he transfer it into the name of the intended trustee, and by some accident the appointment is not completed, the old trustee still remains answerable for the fund.2

§ 289. These powers of appointing successors are frequently matters of personal confidence reposed in the trustees appointed by the settlor, and they are always matters of general trust and confidence to be strictly executed. Being powers given to third persons over the property of others, they are construed with great strictness, and a great variety of decisions have been made upon the various forms in which the power has been expressed. Questions have arisen: (1.) As to the time, occasion, or event when a new appointment may be made; (2.) As to the person or persons by whom the appointment may be made; (3.) As to the persons who may be appointed; (4.) As to the number of persons who may be appointed; (5.) As to the manner of making the new appointment.

§ 290. It should always be carefully considered whether the circumstances or events are such as the settlor intended for the retirement of one or more of the trustees appointed by him, and the substitution of new trustees; thus in a case

1 Adams v. Paynter, 1 Col. 532; Walker v. Brungard, 13 Sm. & M. 723.

2 Pearce v. Pearce, 22 Beav. 248.

where the power provided that, "in case either of the trustees, the said A. and B., shall happen to die, or desire to be discharged from, or neglect or refuse or become incapable to act in the trust, it shall be lawful for the survivor or survivors of the trustees so acting, or the executors or administrators of the last surviving trustee, by any writing, &c., to nominate a new trustee." Both the trustees declining to act, they executed a conveyance to two other persons, as an appointment of them as new trustees under the power; and it was held that the power was not well executed, that the word survivor referred to the trustee "continuing to act," that it was the intention of the testator that in case of the death, refusal, or incapacity of one of his trustees, the remaining one who had been named by him, and who was the object of his confidence, should have the power of associating with himself some other person, and that the event of both declining at the same time was not provided for. Where a settlement upon a chapel contained a power for the appointment of new trustees upon the desertion or removal of any existing trustee, Lord Eldon held that the case of a trustee, who left the trust on account of its being converted by the other trustees to purposes different and distinct from the intention of the settlor, was an event not provided for.2 And so where cestuis que trust were

1 Sharp v. Sharp, 2 B. & Ad. 405; Guion v. Pickett, 42 Miss. 77. 2 Attorney-General v. Pearson, 3 Mer. 412. In Morris v. Preston, 7 Ves. 547, power was given to a husband and wife, or the survivor, with the consent of the cotrustee or trustees, to appoint any new trustee or trustees, and upon such appointment the surviving cotrustees should convey the estate, so that the surviving trustee or trustees, and the new trustee or trustees, might be jointly concerned in the trusts in the same manner as such surviving trustee and the person so dying would have been in case he were living. No new appointment was made till after the death of both the original trustees. The new appointees having made a sale, the purchaser objected to the title on the ground of the invalidity of their appointment under the power; but the objection was waived without argument. Mr. Sugden regrets that the opinion of the court was not taken. 2 Sugd. on Powers, 529. He has, however, never since acted on the doctrine. As where a similar power was given, to a tenant for life, of