Carruth v. Carruth , 148 Mass. 431 ( 1889 )

Morton, C. J.

By the ninth clause of her will, the testatrix gives the residue of her property, real and personal, to a trustee, to hold and manage the same, and to pay the income to her sister during her life. She directs the trustee to “ keep the personal property received by him separate and distinct from the real estate, and from the proceeds derived by him from the sale or sales of real estate,” and upon the death of her sister to pay and transfer such personal property to the Woman’s Board of Missions. She also directs that, after the death of her sister, the trustee shall hold the real estate or its proceeds in trust to pay the income to her brother during his life, and upon his death to divide the same among his children, or, if he leaves no children, to transfer and pay the same to the Woman’s Board of Missions.

This creates two separate and distinct trusts, one of the personal property and the other of the real estate left at her death. It is the same in legal effect as if the two trusts had been created in separate clauses of the will. They are as distinct and separate from each other as are the two trusts created by the sixth and seventh clauses of the will. This being so, we can see no objection to the trustee’s resigning or refusing to accept one of the trusts, if good reasons exist for doing so, and accepting or continuing in the exercise of the other trust; and in such case the Probate Court has, under the broad terms of our statutes, the power to appoint a new trustee to execute the trust which he has resigned or declined. Pub. Sts. c. 141, § 5.

The case of In re Cunard's trusts, 48 L. J. (N. S.) 192, is precisely in point. There the testator left all his property to two trustees, to raise thereout six several sums of $20,000, each to be held on a separate trust, and it was held that there was no objection to the appointment of a new trustee in place of one of the trustees who desired to resign his trust as to one of the funds. This rule has since this decision been established or recognized in England by the Conveyancing Act of 1882. St. of 45 & 46 Vict. c. 39. Lewin on Trusts, (8th ed.) 667. 1 Perry on Trusts, (3d ed.) § 280. In re Wadsworth, 2 Barb. Ch. 381.

We are therefore of opinion, that in the case at bar the Probate Court had the power to appoint the trustee named in the will to execute the trust as to the personal estate, and, upon his declining to accept the trust as to the real estate, to appoint another person to execute this trust. Decree affirmed.