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or is removed, the trust then devolves upon the court, which will not suffer the purpose of the will to be defeated for want of a trustee. It will, therefore, appoint another to fill the vacancy so created, and the estate will vest in the appointee as though he had originally been named. But although the title to the fund may be lodged in the new trustee, it does not follow that he possesses the same powers as his predecessor. Such as are not purely personal he has. But a personal discretion cannot, in the absence of express authority by the testator, be exercised by a substituted trustee.
It is only where some substantial portion of the trust created by the will remains unperformed, that a new trustee will be appointed. If nothing remains to be done but to make a few payments, these may be made as well by the executor of the deceased trustee, and, therefore, the appointment of a successor is not necessary. In every case the appointment, if made, should be on notice to the beneficiaries, for no selection should be determined upon without thoroughly considering the relations of the beneficiaries with the proposed appointee, and to what extent his actions would beinfluenced by them.
57. Removal of executors and trustees for cause.
Merely because one is appointed an executor by the testator, and given authority and control of his property, does not render him immune from punishment for his offenses, and at times removal from office by the court.
Manifestly, if he was, when appointed, or has since become, incompetent or disqualified for any of the reasons which in the first instance would have prevented the grant of letters to him (ante $ 52), he cannot be allowed to continue in office, and must be removed therefrom. How much more so should the same punishment follow an act of positive wrong-doing, although the courts declare that the removal is not visited upon the representative for the sake of punishing him, but only to the end that the estate may be protected.
Waste, misapplication of money, and illegal investment are regarded as such improper conduct on his part as to render him unfit for the due execution of his office. So, too, where the executor absents himself from the state and refuses to appear when cited; when he refuses to obey a direction or order of the court; or where he has failed to furnish a bond if ordered to do so. There are innumerable grounds upon which courts in the various states have proceeded in ridding estates of improper and faithless representatives, but the thought underlying every such action is the safety and protection of the money and property of the estate. If the fund in the hands of the executor has not been put in jeopardy, the court is loathe to remove him. The same principles which relate to the revocation of letters issued to an executor apply also to the removal of a testamentary trustee.
He may also be removed for delegating his authority to another, for refusing to unite with the other trustees in the performance of their lawful duties, or even in case where ill-feeling between the trustee and the beneficiary endangers the proper management of the trust.
The application may be made by the legatee, beneficiary, a creditor, or any other person interested in the estate, and even by a co-executor or co-trustee. In cases of absconding, concealment, or some other flagrant offenses, the removal may be ordered summarily, but otherwise the representative should be given a hearing and an opportunity to face his accuser and answer the charges made against him.
Upon the entry of the decree revoking letters the power of the executor ceases, but where the same person is both executor and trustee, his removal in one capacity does not affect his power or authority in the other.
Upon removing a representative or trustee it is usual for the court to direct him to render an account of all moneys and other property which may then be in his hands, and to pay and deliver the same into the custody of the court, or to his
58. Resignation from office.
According to the rule of the common law neither an executor nor a trustee who had once taken upon himself the duties of his office was permitted to relieve himself of the burden until they had been fully performed. But in most of the States this rule has been modified by statute, so that now an executor or trustee may present his petition to the court, asking leave to render an account of his proceedings, and for a decree, discharging him from further responsibility. But it by no means follows that such petition will be granted. On the contrary, the court will take the matter under advisement and then decide whether sufficient reasons exist for granting the petitioner's prayer. Thus, it is not good ground for resignation that the representative is too much occupied with the conduct of his own business, or even that he has interests which may become inconsistent with his official duties. But such reasons as ill health, contemplated removal from the court's jurisdiction, disagreements with the co-trustee or beneficiary and the like, will be given serious consideration.