reads, “I hereby authorize and empower Jefferson Orr, my said trustee, in the event of sickness, failing health, old age, or any other good cause appearing to him, he may appoint some suitable person to execute said trust," he appointed Edward Yates, of Pittsfield, in Pike county, to execute said trust; that said Orr accounted for the rents for the year 1909 but there has been no accounting of rents for the years 1910 and 1911, and the same have accumulated in the hands of said Orr and his executrix and of said Edward Yates, and that an accounting is desired.

The first question to be considered is, what title was vested in Jefferson Orr by virtue of the will and his acceptance of the trust? A part of the fourth clause of said will reads: "I being desirous of providing a competency for my daughter, Mary Maria Yates, and to create a fund that will not be liable for her debts in any manner whatever and that will secure to her a living, I devise to Jefferson Orr, trustee, (certain lands, describing them,) constituting what is commonly known and called the Putz farm, to have and to hold in trust for the sole use and benefit of Mary Maria Yates for and during her natural life, and in the event of the death of the said Mary Maria Yates without child or children or descendants of child, then to have and to hold for the sole use and benefit of Lydia Yates, my wife, if she shall be living, during her natural life, and at the death of Lydia Yates, my wife, and Mary Maria Yates, my daughter, (if said Mary Maria Yates dies without child or descendants of child,) the fee to said last described tract of land known as the Putz place shall be equally divided between my brothers and sisters and their heirs and assigns, * in equal parts."

It has long been the settled doctrine in this State that the estate of a trustee in real estate which is the subject matter of a trust is commensurate with the powers conferred by the trust and the purposes to be effectuated by it. (Lord v. Comstock, 240 Ill. 492; Bergman v. Arnhold,

242 id. 218.) The acts and duties to be performed by the trustee require the legal estate to be in him, (West v. Fitz, 109 Ill. 425,) for he is to collect and pay over the rents and profits as they accrue. Whether that legal estate or interest is for years, for life or in fee it is unnecessary here to decide. The legal estate, whatever its extent, vested in the trustee, and would be transferred to his successor in trust if the provisions of the will were followed.

Appellants contend that the instrument by which Jefferson Orr undertook to appoint Edward Yates his successor was insufficient to divest the legal estate in the land from himself and convey it to Edward Yates as his successor, because it contained no words of conveyance. The creator of a trust has full power to provide for the appointment of a successor or successors in trust in case the original trustee refuses to act, dies or is removed by a court of competent jurisdiction. (39 Cyc. 271, and cases cited; 1 Perry on Trusts,—6th ed.—sec. 287, and note.) If no provision is made by him for the appointment of a new trustee, the appointment by a court of chancery does not confer title to the real estate upon the appointee, (West v. Fitz, supra,) but if the substitution of a new trustee is provided for by the author of the trust, either by naming the person to be substituted or by giving the power of appointment to another, when the provision for succession is duly followed the substituted trustee takes under the will and derives the power to act from the act of the testator. (Leman v. Sherman, 117 Ill. 657; Lake v. Brown, 116 id. 83; 39 Cyc. 271, and cases cited.) Upon the appointment being made under the power, the new trustee becomes vested, ipso facto, with the title to the trust premises and is clothed with the same power as if he had been originally named in the will. No conveyance need be made to him by the former trustee, or by the former trustee's heirs or representatives, if he be dead. (Craft v. Indiana, Decatur and Western Railway Co. 166 Ill. 580; Reichert v. Mis

souri and Illinois Coal Co. 231 id. 238; Edwards v. Edwards, 22 id. 121; 39 Cyc. 312, and cases cited.) Jefferson Orr was authorized by the will to appoint some suitable person to execute said trust. Under this authority it was not required that the instrument by which he named his successor should contain words of conveyance.

The bill alleges that Edward Yates was not a "suitable person" to be appointed as trustee; that in making this appointment Orr exercised the power granted to him by the will arbitrarily and unwisely, and against the knowledge and consent of the cestuis que trust and their known wishes; that the appointment was not made in good faith and in the interest of and to provide a competency for the cestuis que trust, but for the purpose of providing an income for the said trustee and for the improvement of the said trust property to benefit the contingent remainder-men; that Edward Yates had a contingent interest as to a remainder in the Putz farm, and his interests were hostile and adverse to the interests of the cestuis que trust; that he has been engaged in litigation concerning this farm with appellants, and that out of this litigation and on account of other matters much hostility exists between them, which will interfere with the proper management of the estate; that said farm consists of 460 acres of valuable land, and that the trustee should have a practical knowledge of farming and good business judgment; that Edward Yates has no such knowledge of farming and is not a man of even ordinary business judgment or capacity. The bill further alleges that said Edward Yates was years ago made assignee in a certain voluntary assignment for the benefit of creditors, and that he neglected the management of the property assigned to him and has never settled with the creditors or those entitled to the property.

The general rule in the appointment of trustees and their successors is that any proper person may be so appointed, it being necessarily implied that the person is le

gally capable of executing the trust. This, however, does not give an arbitrary power to appoint a person "unfit or unsuitable to execute such trust." (Bowditch v. Bauelos, I Gray, 220; 28 Am. & Eng. Ency. of Law,-2d ed.-969; 39 Cyc. 275, and cases cited.) "The inquiry in such cases is not whether the person proposed is the most suitable, but whether he is suitable. It is generally the duty, however, of trustees to appoint new trustees who are agreeable to the cestuis que trust and who would administer the fund for their interest. To this end it is generally the duty of the trustees to consult the cestuis que trust as to the appointment, and a new appointee ought to consult the cestuis que trust before accepting the office." (1 Perry on Trusts, 6th ed.-sec. 297.) Even when the author of the trust gives unlimited authority to a person to name a trustee, yet that person must still exercise discretion in so naming one. A court of chancery can undoubtedly exercise control over that discretion (Webb v. Shaftesbury, 7 Ves. Jr. 480,) in order to prevent its abuse. The exercise of this function by a court of equity must be according to the sound discretion of the court, not being controlled by positive rules, except that such discretion must not be abused. (3 Pomeroy's Eq. Jur.-3d ed.-sec. 1086; 1 Perry on Trusts, 6th ed.-275.) "The power of a court of equity to remove a trustee and to substitute another in his place is incidental to its paramount duty to see that trusts are properly executed, and may properly be exercised whenever such a state of mutual ill-feeling, growing out of his behavior, exists * **between the trustee in question and

the beneficiaries that his continuance in office would be detrimental to the execution of the trust." May v. May, 167 U. S. 310; Sampson v. Sampson, 4 Am. & Eng. Ann. Cas. (Eng. Ch. Div.) 404, and note; Lewin on Trusts, (9th ed.) chap. 29.

The testator in this will did not give unlimited power to his trustee, Jefferson Orr, to name a successor in trust.

In creating the power in the will he had in mind the proper qualifications, for he provided that the person appointed should be a "suitable person to execute said trust.". As was said in Bailey v. Bailey, 2 Del. Ch. 95, the power was not “granted absolutely and to be exercised irrespective of the trust, but is expressly intended to be exercised to preserve the trust and give effect to the testator's intention." Manifestly, if the allegations of the bill are accepted as true, the reasons back of and the method and manner of Edward Yates' appointment, his standing and practical qualifications, as well as his relations with the cestuis que trust, disqualify him to serve as the trustee. While he might be held to be legally capable of executing the trust, under the circumstances a court of chancery should not sanction his appointment. If it be contended that many of these charges in the bill against Edward Yates were denied by the answer, the conclusive reply is, that if we were to rule on this case as if it were heard on a bill and answer, then it was the imperative duty of a court of chancery, with these various charges against Edward Yates, to comply with the request of counsel for appellants and permit them to introduce evidence as to the truth of these allegations. In construing the authority vested in Jefferson Orr to appoint his successor, in Orr v. Yates, supra, we said (p. 240): "His action in that regard, if arbitrarily or unwisely exercised, would be controlled by the courts upon application of the cestui que trust." If these charges are true, Orr exercised his authority most unwisely, if not arbitrarily.

It is conceded by all counsel, as was held in Orr v. Yates, supra, that Edward Yates is a contingent remainderman and a large part of this farm may ultimately vest in him or his heirs. Upon an application being made to an English chancery court to appoint a remainder-man as trustee, the chancellor said: "I cannot appoint a person entitled in remainder, as his interest is somewhat opposed