National Webster Bank v. Eldridge , 115 Mass. 424 ( 1874 )

Wells, J.

The estate in question was devised to three trustees, with full power to sell and convey. In case of a vacancy in their number, the remaining trustees or trustee were empowered and directed to appoint others to fill the place, “ by any writing signed and sealed by them or him,” to be approved by the judge of probate or by any justice of the Supreme Judicial Court, and in default of such appointment, the vacancy was to be filled by said judge or justice. During the continuance of such vacancy it was provided that “ the trusts, powers and duties hereby created and assigned to them may be executed and discharged by the remaining trustees or trustee for the time being.” Upon any new appointment being made in either mode, “ the new trustee or new trustees so appointed shall have the same power, right and interest touching the trust premises, and be subject to the same duties and liabilities as if herein appointed trustee or trustees.” By the demurrer the facts are admitted to be as set forth in the bill; to wit, that the present trustees have received their appointment and have succeeded to the places of the original trustees “ in manner and form as provided by said will,” viz., by writing of appointment signed and sealed by the persons designated to appoint, and the approval of the judge of probate : also that the sale was conducted and the conveyance made to th<* plaintiff, according to the terms of the power.

Objection is made, in the first place, that the appointment of the new trustees successively is invalid because no notice was given of the proceedings in the Probate Court. But upon such an appointment the judge of probate acts under the authority conferred upon him by the terms of the will, and not by virtue of his general authority as a court or judicial officer under the statutes establishing the court and defining its jurisdiction. Shaw v. Paine, 12 Allen, 293. It was not a judicial proceeding, and therefore required no notice.

The appointment of the trustees not having been made under the authority of the statute, it would follow, as is contended by the defendant, that the provisions of the Gen. Sts. e. 100, § 9, would not operate to vest the title in them. But we are inclined to the opinion that such an appointment by deed, under the directions of a will which devises the estate to trustees, with power to appoint others to supply vacancies as they may occur, and which declares that the new trustees so appointed “ shall have the same power, right and interest touching the trust premises ” as if herein appointed trustees, may operate as a good appointment of the estate by which the legal title will vest in the new trustees by force of the devise itself.

If the title did not so vest, it remained in the surviving original trustee as a naked trust; and upon the execution of the power of sale, expressly conferred upon the new trustees, it would pass to the purchaser by force of the terms of the devise and by their deed under the power.

The conveyance of all his right and interest in the legal title to the new trustees, by the survivor of the original trustees, and their second deed to the purchaser in confirmation of the title supposed to have been previously conveyed, removes whatever of doubt there could have been before as to the sufficiency of the plaintiff’s title. This has been done since the time when the agreement was to have been performed, it is true; but whatever weight may be due to that circumstance, it is a matter to be considered in the final determination of all the equities of the case. For the purpose of presenting those the defendant must answer to the merits. Demurrer m erruled.