cannot claim the benefit if he decline the office.1 And a trustee who has power, under certain circumstances, to appoint a colleague and successor to execute the trusts, may disclaim the trusts, except the power of nominating other persons to be trustees in place of those originally appointed, and an appointment by one who has never acted except to make the nomination will be held valid.2

§ 273. If a person appointed trustee effectually disclaims, it is as if he had never been named in the instrument. All parties are placed in the same situation in respect to the trust property as if his name had not been inserted in the deed or will. Therefore, if one of the several trustees disclaims, the entire estate will vest in the remaining trustee or trustees;* and if all the trustees or a sole trustee disclaim, the estate

66

1 It is an established rule that bequests to individuals are considered, prima facie, to be given to them in that character, a presumption to be repelled by the nature of the legacies or other circumstances arising in the will. Roper on Leg. 780; Slaney v. Watney, L. R. 2 Eq. 418. It is so, even if the persons are described in the legacy as 'my good friends." Read v. Devaynes, 3 Bro. Ch. 95. Or if the legacy is given in the will among other legacies. Calvert v. Sebhon, 4 Beav. 222. Or if it is given in a codicil naming the person as an individual and not naming his office. Stackpole v. Howell, 13 Ves. 417; per Ch. J. Chapman in Kirkland v. Narramore, 105 Mass. 31. And see Lewis v. Matthews, L. R. 8 Eq. 277; Abbott v. Massie, 3 Ves. 148; Harrison v. Rowley, 4 Ves. 212; Cockerill v. Barber, 1 Sim. 23; 5 Russ. 585; Barnes v. Kirkland, 8 Gray, 512; Rothmaler v. Myers, 4 Des. 255; Dix v. Read, 1 S. & S. 237; Piggott v. Green, 6 Sim. 72; Billingslea v. Moore, 14 Ga. 370; Hall v. Cushing, 9 Pick. 395; Newcomb v. Williams, 9 Met. 525; Dixon v. Homer, id. 420; Brygdes v. Wotton, 1 V. & B. 134; Morris v. Kent, 2 Ed. Ch. 175; In re Hawken's Trust, 33 Beav. 570; Hanbury v. Spooner, 5 Beav. 630; Griffiths v. Pruen, 11 Sim. 202; King v. Woodhull, 3 Edw. Ch. 79; Brown v. Higgs, 4 Ves. 708; Thayer v. Wellington, 9 Allen, 283, 295; Granberry v. Granberry, 1 Wash. 246.

2 In re Hadley, 5 De G. & Sm. 67; 9 Eng. L. & Eq. 67.

3 Townson v. Tickell, 3 B. & Al. 31; Begbie v. Crook, 2 Bing. N. C. 70; Clemens v. Clemens, 60 Barb. 366; Hawkins v. Kemp, 3 East, 410; Smith v. Wheeler, 1 Ventr. 128; Legett v. Hunter, 25 Barb. 81; 19 N. Y. 445; Goss v. Singleton, 2 Head, 67. [Parkhill v. Doggett, 135 Iowa, 113.]

4

* Ibid.; Bonifant v. Greenfield, Cro. Eliz. 80; Denne v. Judge, 11 East, 288; Ellis v. Boston, Hartford, & Erie R. Co., 107 Mass. 13. [Wheeler's Appeal, 70 Conn. 511.]

1

will vest in the heir subject to the trusts. The settlor must be presumed to have known the effect of a disclaimer by the trustees named by him.2 It will be seen from this, that a disclaimer operates retrospectively, and vests the estate, ab initio, in those trustees only who accept the trust, and, in the absence of an acceptance by any of the trustees, in the heir. It follows, that all the powers and authority vested in the trustees, as such, which are incidental or requisite to the execution of the trusts, are vested in those trustees only who accept the office. (a) They may, therefore, grant leases of the trust estate,4 and sell and convey the same," and give valid receipts for the purchase-money, and the disclaiming trustee need not join in the deeds, nor can his concurrence be required or enforced. But it must be known whether one of several trustees disclaims or accepts before it can be known whether the acts of the others are valid or not. And it is immaterial that a disclaiming trustee is expressly named as one of the persons by whom a power connected with the trust is to be exercised:8 a power given to the trustees, or the survivor of them, may be exercised by an acting trustee, although the disclaiming trustee is still alive. But if the power is given to the person and not to the office, a

1 Stacey v. Elph, 1 M. & K. 195; Austin v. Martin, 29 Beav. 523; Goss v. Singleton, 2 Head, 67. In New York it rests in the court by statute. 2 Browell v. Reed, 1 Hare, 435.

Peppercorn v. Wayman, 5 De G. & Sm. 230; Stacey v. Elph, 1 M. & K. 195; Dunning v. Ocean Nat. Bk., 6 Lans. 296.

4 Small v. Marwood, 9 B. & Cr. 307; Bayly v. Cumming, 10 Ir. Eq. 410. 5 Cooke v. Crawford, 13 Sim. 91; Adams v. Taunton, 5 Madd. 435; Crewe v. Dicken, 4 Ves. 97; Nicolson v. Wordsworth, 2 Swanst. 378.

6 Hawkins v. Kemp, 3 East, 410; Smith v. Wheeler, 1 Ventr. 128; 2 Ven. & Pur. 850; Vandever's App., 8 Watts & S. 405.

7 Moir v. Brown, 14 Barb. 39. [Coleman v. Connolly, 242 Ill. 574.]

* Crewe v. Dicken, 4 Ves. 100; Adams v. Taunton, 5 Madd. 435. Sharp v. Sharp, 2 B. & Cr. 405; Peppercorn v. Wayman, 5 De G. & Sm. 230.

(a) La Forge v. Binns, 125 Ill. App. 527; Mullanny v. Nangle, 212 Ill. 247. This is often expressly pro

vided by statute. Md. Public Gen. Laws (1904), Art. 93, §§ 293–295.

disclaimer by one will not vest the power in the other trustees, so as to enable them to exercise it. Powers that imply a personal confidence in the donee must be exercised by the persons in whom the confidence is placed, and to whom the power is given. Such powers, therefore, will not vest by the disclaimer of one in his cotrustees, but will be absolutely gone.2 (a)

§ 274. If a trustee once accepts the office, he cannot by his sole action be discharged from its duties. Having once entered upon the management of the trust, he must continue to perform its duties until he is discharged in one of three ways: first, he may be removed and discharged, and a new trustee substituted in his place, by proceedings before a court having jurisdiction over the trust; second, he may be discharged, and a new trustee appointed, by the agreement and concurrence of all the parties interested in the trust; and, third, he may be discharged, and a new trustee appointed, in the manner pointed out in the instrument creating the trust, if it makes any provisions upon that subject. Mere abandonment of the trust will not vest the trust property in the hands of his cotrustee, nor relieve a trustee from liability. If

1 Cole v. Wade, 16 Ves. 44; Newman v. Warner, 1 Sim. (N. s.) 457; Eaton v. Smith, 2 Beav. 236; Att. Gen. v. Doyley, 2 Eq. Cas. Ab. 194; Walsh v. Gladstone, 14 Sim. 2; Wilson v. Pennock, 27 Pa. St. 238.

2 Eaton v. Smith, 2 Beav. 236; Lancashire v. Lancashire, 2 Phill. 657; Robson v. Flight, 33 Beav. 268.

3 Craig v. Craig, 3 Barb. Ch. 76; Drane v. Gunter, 19 Ala. 731; Thatcher v. Candee, 3 Keyes (N Y.), 157; Shepherd v. McEvers, 4 Johns. Ch. 186; Cruger v. Halliday, 11 Paige, 319; Ridgeley v. Johnson, 11 Barb. 527; Webster v. Vandeventer, 6 Gray, 428; Pearce v. Pearce, 22 Beav. 248; Sugden v. Crossland, 3 Sm. & Gif. 192; Jones v. Stockett, 2 Bland, 409; Perkins v. McGavock, 3 Hay. 265: [Stearns v. Fraleigh, 39 Fla. 603, 610; Jenkins v. Hammerschlag, 56 N. Y. S. 534 (a trustee for creditors).]

4 Webster v. Vandeventer, 6 Gray, 428; Cruger v. Halliday, 11 Paige, 314; Thatcher v. Candee, 3 Keyes, 157.

(a) As to the vesting of powers in the surviving or continuing trustee upon the death, disclaimer, re

moval or resignation of one or more of several cotrustees, see infra, § 498.

a trustee conveys away the trust estate to another, even his cotrustee, and appoints another to execute the trust, the conveyance may pass the naked legal title, but it will have no effect in relieving the original trustee from responsibility, if the transaction is not sanctioned by the decree of the court, or by the consent of all parties interested; and it will transfer no authority to the person thus appointed, except to make him a trustee de son tort, if he attempts to interfere with the trust estate.1

$275. The cestui que trust, and all other persons, although contingently interested in the remainder or reversion of trust property, are entitled to have the custody and the administration of it confided to proper persons, and to a proper number of persons. Thus if a trustee originally appointed by will die in the testator's lifetime, a new trustee may be appointed by the court to take the trust property; or if the original number of trustees is reduced by death, the cestui que trust may call upon the court to appoint new trustees in place of those deceased.3 So if a trustee disclaims, or refuses to act after having once accepted, or becomes so situated that he cannot effectually execute the office, as by becoming a permanent resident abroad," (a)

1 Pearce v. Pearce, 22 Beav. 248; Sugden v. Crossland, 3 Sm. & Gif. 192; Braybrooke v. Inskip, 8 Ves. 417; Chalmers v. Bradley, 1 J. & W. 68; Williams v. Parry, 4 Russ. 272; Adams v. Paynter, 1 Coll. 532; Cruger v. Halliday, 11 Paige, 314; Ardill v. Savage, 1 Ir. Eq. 79. [Spengler v. Kuhn, 212 Ill. 186.]

2 Finlay v. Howard, 2 Dr. & W. 490; Cooper v. Day, 1 Rich. Eq. 26; In re Sheppard's Trusts, 4 De G., F. & J. 423; Rennie v. Ritchie, 12 Cl. & Fin. 204.

3 Buchanan v. Hamilton, 5 Ves. 722; Hibbard v. Lamb, Amb. 309; Webb v.Shaftesbury, 7 Ves. 487; Millard v. Eyre, 2 Ves. Jr. 94; De Peyster v. Clendining, 8 Paige, 296; Dixon v. Homer, 12 Cush. 41; Mass. Gen. Hos. v. Amory, 12 Pick. 445; Greene v. Borland, 4 Met. 339. [ But see Mullanny v. Nangle, 212 Ill. 247; La Forge v. Binns, 125 Ill. App. 527. See infra, § 286.]

4 Wood v. Stane, 8 Price, 613; Moggeridge v. Grey, Nels. 42; Anon. 4 Ir. Eq. 700; Travell v. Danvers, Finch, 380; Irvine v. Dunham, 111 U. S. 327. O'Reilly v. Alderson, 8 Hare, 101; Re Ledwick, 6 Ir. Eq. 561; Com., (a) Removal from the State does incapable of acting as such. Bonner not ipso facto render a trustee legally v. Lessley, 61 Miss. 392.

or by absconding;' orif a female trustee marry; or if the trustees of a church or chapel embrace opinions contrary to the founder's intentions; or if the trustee becomes bankrupt, or misconducts himself, or deals with the trust fund for his own personal profit and advancement, or commits a breach of trusts or refuses

3

&c., v. Archbold, 11 Ir. Eq. 187; Lill v. Neafie, 31 Ill. 101; In re Reynolds' Settlement, L. R. 7 Ch. 224; Maxwell v. Finnie, 6 Cold. 434; Curtis v. Smith, 60 Barb. 9; Mennard v. Wilford, 1 Sm. & Gif. 426; Re Stewart, 8 W. R. 297; Re Harrison's Trusts, 22 L. J. Ch. 69; Dorsey v. Thompson, 37 Md. 25; Ketchum v. Mobile & Ohio R. R., 2 Woods, 532. [See Ames' Cases on Trusts, (2d ed.) 249, n.] The voluntary removal to, and becoming a resident of, a foreign country by a trustee under a mortgage by a railroad company, incapacitates him and vacates the office; and if, after such removal, he attempts to prosecute suit in federal court the state court will enjoin him. Farmers' Loan and Trust Co. v. Hughes, 11 Hun (N. Y.), 130. And where the cestui que trust was prohibited by law from coming into the State, the court, on the trustee's petition, discharged him, and appointed one living in the same State with the cestui que trust. Ex parte Tunno, 1 Bailey, Ch. 395.

1 Millard v. Eyre, 2 Ves. Jr. 94; Gale's Peti. R. M. Charlt. 109; Re Mais, 16 Jur. 608.

2 Lake v. De Lambert, 4 Ves. 592; Re Kaye, L. R. 1 Ch. 387. By chap. 409 of the Acts of 1869, a married woman in Massachusetts may be appointed executrix, adminstratrix, guardian, or trustee, with the written assent of her husband; and the marriage of a single woman who holds such trusts shall not extinguish her authority, but her sureties on petition may be discharged, and she may be required to give new ones. [The assent of her husband is no longer necessary. R. L. (1902) c. 153, § 5. See also statutes of other States, removing the disabilities of married women.]

Att. Gen. v. Pearson, 7 Sim. 309; Att. Gen. v. Shore, id. 317; Rose v. Crockett, 14 La. An. 811. If individuals pay their own money, and take a deed to themselves in trust for a parish, the courts will not appoint a trustee to fill a vacancy; but if the parish paid the money, the court will appoint. Draper v. Minor, 36 Mo. 290.

Bainbrigge v. Blair, 1 Beav. 495; In re Roche, 1 Con. & Laws. 306; Com., &c., v. Archbold, 11 Ir. Eq. 187; Harris v. Harris, 29 Beav. 107; Re Bridgman, 1 Dr. & Sm. 164.

5 Mayor of Coventry v. Att. Gen., 7 Bro. P. C. 235; Buckeridge v. Glasse, 1 Cr. & Ph. 122; Thompson v. Thompson, 2 B. Mon. 161; Deen v. Cozzens, 7 Rob. 178.

Ex parte Phelps, 9 Mod. 357; Clemens v. Caldwell, 7 B. Mon. 171; Deen v. Cozzens, 7 Rob. 178; Kraft v. Lohman, 79 Ala. 323. [Gregg v. Gabbert, 62 Ark. 602.]

7 Thompson v. Thompson, 2 B. Mon. 161; Mayor of Coventry v. Att.