REPORTS OF CASES ARGUED AND DETERMINED IN THE SURROGATES' COURTS OF THE STATE OF NEW YORK WITH OTHER DECISIONS AFFECTING DECEDENTS' ESTATES. In the Matter of the Accounting of L. LAFLIN KELLOGG, as Executor of GEORGE H. MORGAN, Deceased, Respondent. GEORGE D. MORGAN, Appellant; JUNIUS S. MORGAN et al., Respondents. (Court of Appeals, April 13, 1915.) TESTAMENTARY TRUSTEES-EFFECT OF RENUNCIATION OF TRUST BY ONE OF TWO OR MORE TRUSTEES WHEN RENOUNCING TRUSTEE MAY NOT RETRACT HIS REFUSAL TO ACT-TRUSTEES MAY RECEIVE AND INVEST TRUST ESTATE OF PERSONALTY BEFORE FINAL ACCOUNTING OF EXECUTOR. 1. Where one of two or more trustees refuses to accept and execute a trust the estate vests in the others the same as though the trustee refusing to act were dead or had not been named, and a person named as trustee may not retract his refusal to accept the trust after the others have entered upon their trust duties. He should be held to his refusal or renunciation unless, at least, it is withdrawn before the others have acted. 2. Trustees may receive any part of the trust estate consisting of personalty before the executor has accounted and been directed to pay it over, and are not bound to wait until the final accounting of an executor before investing the money in the manner directed by the testator. Matter of Morgan, 165 App. Div. 987, modified. APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 24, 1914, which affirmed a decree of the New York County Surrogate's Court settling the accounts of L. Laflin Kellogg as executor of George H. Morgan, deceased. The facts, so far as material, are stated in the opinion. Henry A. Wise and Ernest A. Bigelow for appellant. The appellant's renunciation of his trusteeship was nullified by his subsequent retraction thereof before any estate vested or could properly vest in his co-trustees and he was entitled to receive the residuary bequest jointly with L. L. Kellogg and J. S. Morgan, as trustees. (Matter of Hood, 98 N. Y. 363; Codding v. Newman, 3 T. & C. 364; 63 N. Y. 639; Matter of Treadwell, 37 Misc. Rep. 584; Matter of Wilson, 92 Hun, 318; Casey v. Gardiner, 4 Bradf. 13; Robertson v. McGeogh, 11 Paige, 640; Matter of Haug, 29 Misc. Rep. 38; Matter of Clute, 37 Misc. Rep. 710; Matter of Wilson, 92 Hun, 322.) Abram J. Rose and William K. Hartpence for L. Laflin Kellogg as executor, respondent. The findings of the referee having been confirmed by the surrogate and the decision of the surrogate having been unanimously affirmed by the Appellate Division, this court must assume that the findings are sustained by evidence, and unless there is some other exception which presents a question of law, there is nothing left but for this court. to affirm the order and decree appealed from. (Cardozo's Jurisdiction of the Court of Appeals [2d ed.], § 56; Marden v. Dorothy, 160 N. Y. 39; Matter of Hall, 164 N. Y. 196; Krekeler v. Aulbach, 169 N. Y. 372; Matter of Mercantile Trust Co., 210 N. Y. 83; Hilton v. Ernst, 161 N. Y. 226.) The surrogate under the facts and circumstances of this case was without power either to permit the said George Denison Morgan to retract his renunciation to act as trustee or to reappoint him as a trustee under said will. (Redfield on Surr. Pr. [7th ed.] §§ 319, 514.) In the case of a renunciation by a trustee, there can be no renunciation so as to restore as trustee the person who has renounced. (King v. Donnelly, 5 Paige, 46; Matter of Van Schoonhoven, 5 Paige, 560; Matter of Stevenson, 3 Paige, 420; Matter of Reynolds, 11 Hun, 41; Earle v. Earle, 16 J. & S. 18; 93 N. Y. 104; Matter of Crossman, 20 How. Pr. 350, 354; Burrill v. Sheil, 2 Barb. 457.) Clarence Blair Mitchell and William G. Choate for James S. Morgan et al., respondents. The finding of the referee approved by the surrogate and affirmed by the Appellate Division that Junius S. Morgan and L. Laflin Kellogg were the only qualified and acting trustees under the will, was correct. (Matter of Van Schoonhoven, 5 Paige, 559; King v. Donnelly, 5 Paige, 46; Matter of Stevenson, 3 Paige, 420; Burritt v. Silliman, 13 N. Y. 93; Earle v. Earle, 16 J. & S. 18; 93 N. Y. 104; Perry on Trusts, §§ 267, 273.) A. Perry Osborn for Sarah S. Gardner, respondent. The surrogate's decree affirmed by the Appellate Division correctly found that George D. Morgan having renounced as trustee, Junius S. Morgan and L. Laflin Kellogg are the only qualified and acting trustees under the will. (Matter of Van Schoonhoven, 5 Paige, 559; King v. Donnelly, 5 Paige, 46; Matter of Stevenson, 3 Paige, 420; Burritt v. Silliman, 13 N. Y. 93; Earle v. Earle, 16 J. & S. 18; 93 N. Y. 104; Perry on Trusts, S$ 267, 273.) Daniel J. Mooney for Alexander P. Morgan, respondent. MILLER, J.-The first question in this case arises upon a bequest in the following words: "I give and bequeath unto my children, Caroline Lucy Morgan, Junius Spencer Morgan and George Denison Morgan, all my silver, bric-a-brac and pictures absolutely, to be divided between them as they shall agree among themselves. If, however, they cannot agree as to the division, then the same shall be divided by lot among them, my eldest child being given first choice." After the death of the testator, the legatees, his three children, met and made a tentative selection of the articles of personal property which each desired to acquire, either by purchase or under the said clause of the will, but without undertaking to distinguish between bric-a-brac and furniture, the agreement being that each would purchase at the inventory prices such articles, so selected, as were neither silver, pictures nor bric-a-brac. The respondents Junius Spencer Morgan and Caroline Lucy Morgan received from the executor and receipted for such articles in the list of each as were classified by the executor as bric-a-brac and purchased the other articles at the inventoried prices. The appellant, however, refused to accede to the classification of bric-abrac made by the executor and refused and declined to purchase the articles in his last classified as furniture, but made an arrangement with the executor whereby the latter was to sell at auction the articles in dispute and keep a separate account thereof so that, if it should be determined that any of them were bric-a-brac, the money should take the place of the specified articles. Of the articles so sold, the referee found that articles selling for $721.50 were in fact bric-a-brac. However, instead of allowing that sum to the appellant, it was divided equally among the three children. The appellant urges that still other articles should be classed as bric-a-brac and that in any view the court erred in not awarding the whole sum of $721.50 to the appellant. Whilst by the gift to his children of all his "silver, bric-abrac and pictures," the testator probably intended to keep in his family such articles, e. g., as tapestries, we are not prepared to say, as a matter of law, that that was his intention or that |