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case no separate letters are issued to the trustee as evidence of his authority. He must, of course, signify his acceptance of the office, and thus subject himself to the direction and control of the court, and may, upon good cause shown, be required to furnish security for the faithful performance of his duties, but this does not pertain to his qualification for office.
Where one of two or more trustees refuses to accept the trust, the estate vests in the others the same as though the trustee refusing to act were dead or had not been named, and he may not retract his refusal after the others have entered upon their trust duties.
The cases in which a trustee will be required to file a bond are those in which an executor may be so required, namely, where it is shown that his circumstances are such that they do not afford adequate security to those interested in the estate, or that he resides without the state. If he fails to give one when so ordered, he may be removed from office.
55. Effect of death, renunciation, etc., of ex
ecutor. If one of several executors dies, renounces, or becomes mentally incapacitated before probate of the will, the letters testamentary will be directed to the others named. If probate has already been had and letters issued before such death or vacancy occurs, the survivors continue the administration of the estate, as though they alone had been appointed. But if the testator has directed that his executors shall all act together as his representatives, the death of one prevents the administration by the others.
The mere fact of mental incapacity does not create a vacancy in the number of executors. It can only be created by the finding of such incapacity by the court and a removal of the executor for that cause.
If the sole executor named in the will renounces the appointment, or dies, resigns or becomes incompetent either before or after probate, or if the testator has failed to make any appointment at all, the administration of the estate is not affected. In such case another must be designated by the court to fill the vacancy. The one so appointed is not called an executor, but an administrator with the will annexed.
The application for the appointment of such an official may be made by anyone interested in having the estate administered, as a creditor, for instance.
Generally, however, the petition is filed by someone having the right to be appointed himself, as the residuary legatee, or if none, some one of the other legatees. Where there are a number of persons having an equal right to the appointment, the court in its discretion will select one from their number. Before letters are issued to him, he must file his official oath, and a bond to secure the performance of the duties of his office. When he has duly qualified and received his letters from the probate court, he becomes vested with the same power and authority as though he had been named an executor therein, with this exception, that where a personal confidence in the discretion of the person named as executor is disclosed by the will, discretionary powers given to him cannot be executed by the administrator with the will annexed. In other words, the powers which pass are those which are attached to the office of the executor and not to his person. Thus, where a fund is given in trust, and it appears that its management is intended to rest upon the personal discretion of the executor, it does not pass to the administrator; on the other hand, a mere direction to sell real property for the purpose of paying legacies does not rest upon personal discretion, but attaches rather to the office of the executor, and may be executed after his death by an administrator with the will annexed. Of course, if no executor is named in the will, no question of personal confidence can arise, and in such case even discretionary powers may be exercised by the administrator.
If the administrator with the will annexed takes it upon himself to perform any of the trusts created by the will, he is accountable for his acts in connection therewith, and for all the trust moneys which have come into his hands. He is always personally liable for any obligation he may have incurred or contracted, but he is not responsible for the acts and wrong-doing of his predecessor.
56. Vacancies in office of trustee; how filled.
The case of testamentary trustees is somewhat different from executors. They may not, like the latter, act separately, but must unite in the performance of their duties. A conveyance by one while another is living and able to act is ineffectual. If one of them becomes mentally incapacitated, the other cannot act, and in such a case another is appointed in his place. Where the will indicates the intention of the testator that the trustees shall act jointly, the death of one will prevent the other from acting. Of course, the creator of a trust may prescribe that a majority of the trustees, or the survivor or survivors of them, shall possess the powers and authority given to all of them, and, therefore, the death of one will not prevent action by the others. And it has been held that unless joint action by the trustees is made imperative, if one of them dies, the trust may be carried out by the survivor.
It is not at all uncommon for the testator to provide for the filling of vacancies, granting authority to the survivor or survivors to make the appointment of a successor trustee, by an instrument in writing to be executed and filed in the probate court. If the survivors, for one reason or another, fail to agree upon the appointment, the court has the power to remove that one of the survivors who seems to be at fault, and to fill all vacancies then existing.
But where no power is given to the trustees to fill vacancies occurring among their number, then where one of two or more trustees named in the will dies prior to the probate, or dies, renounces or becomes insane, or resigns, or is removed after probate, usually no successor will be appointed unless it be necessary in order to comply with the express terms of the will, or unless the court is of the opinion that the interests of the beneficiary demand it. In all such cases the remaining trustees may proceed and execute the trust as fully as if such vacancy had not occurred.
Where, however, the sole trustee, or each of the trustees named, declines the trust or dies, resigns