to appoint a trustee upon the refusal or neglect of the others to act, it was held that they could not appoint upon the death of one of them. But generally where the power to appoint new trustees is given to the survivor of several trustees, it may be legally exercised by the continuing trustee upon the resignation or refusal of the others to act.2 3 § 291. In some earlier cases, it was held that where a power was given to the surviving trustee or trustees to appoint new trustees in case of the death of either of their cotrustees, it did not authorize an appointment to fill a vacancy caused by the death of trustees during the lifetime of the testator, upon the ground that persons dying in the lifetime of the testator had never filled the character of trustees so as to come within the terms of the power; but these are overruled by the later cases, and it may be considered as settled that the surviving trustee or trustees may fill vacancies caused by the death of persons nominated by the testator, whether they die in his lifetime or afterwards. So if the continuing trustee or trustees are to appoint upon the refusing or declining of any of the original trustees, they may appoint upon the disclaimer of any one or more; 5 and so a payment of the trust fund into court, under an order or permission to that effect, is a refusing appointing new trustees, one trustee died and the other became bankrupt, and it was objected that the power of appointment was gone, Sir Edward Sugden ruled to the contrary. Re Roche, 1 Conn. & Laws. 306; 2 Dr. & War. 287. 1 Guion v. Pickett, 42 Miss. 77. 2 Sharp v. Sharp, 2 B. & Ad. 405; Eaton v. Smith, 2 Beav. 236; Travis v. Illingworth, 2 Dr. & Sm. 344; Cooke v. Crawford, 13 Sim. 91; Hawkins v. Kemp, 3 East, 410. 8 Walsh v. Gladstone, 14 Sim. 2; Winter v. Rudge, 15 Sim. 576. 4 Lonsdale v. Beckett, 4 De G. & Sm. 73; In re Hadley's Trust, 5 De G. & Sm. 67; 9 Eng. L. & Eq. 67; Noble v. Meymott, 14 Beav. 477. Re Roche, 1 Conn. & Laws, 306; Walsh v. Gladstone, 14 Sim. 2; Mitchell v. Nixon, 1 Ir. Eq. 155; Cook v. Ingoldsby, 2 Ir. Eq. 375; Travis v. Illingworth, 2 Dr. & Sm. 344. or declining by the trustee that authorizes the exercise of the power.1 § 292. If the settlement provides that a new appointment may be made on either of the trustees becoming unfit, the power may be exercised if one of them becomes bankrupt;2 but if the word is incapable without the word unfit, a new appointment cannot be made, for the word incapable means personal incapacity and not pecuniary embarrassment, and a bankrupt who had some time before obtained a first-class certificate of discharge was not regarded as coming within the term unfit. But where a trustee of property in London had been domiciled in New York for twenty years, he was declared incapable within the meaning of the word.5 Where a power declared that, "if the trustees were not deemed suitable and sufficient to act as trustees by the cestui que trust, he might remove them, it was held to be a matter of discretion in the beneficiary to remove the trustees or not." 6 § 293. Where a suit is already pending in court for the administration of the trust, the donees of the power to ap 1 Re William's Settlement, 4 K. & J. 87. 2 In re Roche, 1 Conn. & Laws. 308; 2 Dr. & War. 287. 8 Re Watt's Settlement, 9 Hare, 106; Turner v. Maule, 5 Eng. L. & Eq. 222; 15 Jur. 761. In re Bignold's Settlement, L. R. 7 Ch. 223; Re Blanchard, 3 De G., F. & J. 131. A statute in New York provides that administration, &c., shall not be granted to any person who shall be judged incompetent by the surrogate to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding. Under this statute it was held that mere moral turpitude does not per se disqualify, but that professional gambling was such evidence of improvidence as prima facie to disqualify. Cooke v. Lawerne, 1 Barb. Ch. 45; McMahon v. Harrison, 2 Seld. 443. 4 Re Bridgman, 1 Dr. & Sm. 164. Mennard v. Welford, 1 Sm. & Gif. 426. The opposite doctrine was previously held in Withington v. Withington, 16 Sim. 104; O'Reilly v. Alderson, 8 Hare, 101. • Walker v. Brungard, 13 Sm. & Mar. 758. point cannot exercise it without first obtaining the court's approval of the person proposed.1 When it is desired to change the trustees during the pendency of a suit, a motion must be made, and such motion is referred to a master to report upon the person proposed. The master is to regard the power of appointment; but he is not bound to approve the proposed person.2 If an appointment is made, however, by the old trustees, it is not contempt, nor is it altogether void; but it puts the burden upon those making the appointment of proving, by the strictest evidence, that it was just and proper. If they fail in such proof, the act will be declared null and void. So if the trustee or other person having power to appoint a new trustee is a lunatic, the court must appoint.* § 294. It will at once be seen that the power of appointing other trustees can be exercised only by those to whom it is expressly given. Therefore, if the power is not given to any one, new trustees can be appointed only by the court.5 So if the power be given to particular persons by name, without saying more, or adding words of survivorship, it must be exercised jointly, and upon the death of one of them the power will be gone. But if a power be given to a class consisting of several persons, as to my "trustees," "my sons," or "my brothers," and not to individuals by their proper names, 1 Millard v. Eyre, 2 Ves. Jr. 94; Webb v. Shaftesbury, 7 Ves. 480; Peatfield v. Benn, 17 Beav. 552; Kennedy v. Turnley, 6 Ir. Eq. 399; Attorney-General v. Clack, 1 Beav. 467; Middleton v. Reay, 7 Hare, 106; v. Roberts, 1 J. & W. 251. 2 Webb v. Shaftesbury, 7 Ves. 487; Middleton v. Reay, 7 Hare, 106. 8 Cape v. Bent, 3 Hare, 249; Attorney-General v. Clack, 1 Beav. 467; Baker v. Lee, 8 H. L. Ca. 495. In re Sparrow, 1 L. R. 5 Ch. 662; In re White, L. R. 5 Ch. 698; In re Cuming, ib. 72; In re Heaphy, 18 W. R. 1070; In re Nicholl, ib. 416. Wilson v. Towle, 36 N. H. 129. Co. Litt. 113 a.; 1 Sugd. Pow. 141. the authority will exist in the class, so long as the plural number remains, although it may have been reduced in number by the death or resignation of some;1 and where a power is given to "my executors" as a class, it may be exercised by a single surviving executor.2 A power to be exercised by the survivor of two persons cannot be executed by the one dying first, nor even by the two acting together during the lives of both. So a power given to the surviving or continuing trustee to appoint a cotrustee, if either of the two decline to act, does not authorize an appointment if both decline.5 So the power of appointment cannot be executed by heirs, personal representatives, or assigns of any trustee, unless the authority is expressly given in the instrument of trust. In these, as in all other cases, the authority will be strictly confined to those persons who answer the precise description. Thus a power given to a trustee, his heirs, executors, or administrators, cannot be executed by a devisee or assignee of the trustee. It is, however, well established, that a power given to a surviving trustee may be executed by a continuing or acting trustee, although a cotrustee who disclaimed is still living.8 1 Gartland v. Mayott, 2 Vern. 105; Eq. Ca. Ab. 202; 2 Freem. 105; Dyer, 177 a.; Co. Litt. 112 b.; Byam v. Byam, 19 Beav. 58; Belmont v. O'Brien, 2 Kern. 394; 1 Sugd. Pow. 144; McKim v. Handy, 4 Md. Ch. 230. 21 Sugd. Pow. 244; Davoue v. Fanning, 2 Johns. Ch. 252. * Bishop of Oxford v. Leighton, 2 Vern. 376. 4 McAdam v. Logan, 3 Bro. Ch. 320. Sharp v. Sharp, 2 B. & Ad. 405. Bradford v. Belfield, 2 Sim. 264; Eaton v. Smith, 2 Beav. 236; Davoue v. Fanning, 2 Johns. Ch. 252; Titley v. Wolstenholme, 7 Beav. 424; Granville v. McNeale, 7 Hare, 156; Hall v. May, 3 Kay & J. 585; Cooke v. Crawford, 13 Sim. 91. Bradford v. Belfield, 2 Sim. 264; Cole v. Wade, 16 Ves. 47; Cape v. Bent, 3 Hare, 245; Ackleston v. Heap, 1 De G. & Sm. 640; McKim v. Handy, 4 Md. Ch. 230; Mortimer v. Ireland, 6 Hare, 196. 8 Lane v. Debenham, 11 Hare, 188; Eaton v. Smith, 2 Beav. 236; Sharp v. Sharp, 2 B. & A. 405. § 295. Upon this principle, the number of parties undertaking to execute a power must come within the exact description given of the number of those who are to execute it; thus, if a power is given to be exercised by a certain specified number, or when they are reduced to a certain number, it cannot be exercised by a less number, and is gone if not exercised before the number is reduced below the number which is named for its execution. But the power may be executed before the trustees are reduced to the lowest number specified, as where a conveyance to twentyfive trustees for a chapel directed that when, by death or otherwise, the number should be reduced to fifteen, a majority of those remaining should make up the number to twentyfive. The number was reduced to seventeen; and twelve, the others dissenting, elected eight new trustees, and it was held a good appointment under the power.2 § 296. A married woman may exercise the power of appointing new trustees, if such power is expressly given to her, as she may exercise any other power given to her in an instrument of trust;3 and she may appoint her husband trustee; but an infant cannot exercise such power unless it is simply collateral.5 § 297. Where the appointment of new trustees is given to the discretion of the acting trustees, courts of equity will not interfere to control the exercise of the discretion if the old trustees act in good faith, and if the administration of the 1 Att'y-Gen. v. Floyer, 2 Vern. 748; Att'y-Gen. v. Litchfield, 5 Ves. 825. 2 Dupleix v. Roe, 1 Anst. 86. 4 Tweedy v. Urquhart, 30 Ga. 446. 8 Ante, § 49. Bowditch v. Bannelos, 1 Gray, 220; Hodgson's Settlement, 9 Hare, 118. In Bowditch v. Banuelos, above cited, Ch. J. Shaw said: "But when we say that she (the cestui que trust) had power at her pleasure to appoint, we do not mean to say that this was an arbitrary power to appoint a person unfit or unsuitable to execute such a trust, as a minor, an idiot, a |