This is a bill for the appointment of new trustees in the place of former trustees who have deceased, to act with the surviving trustee in the trusts in the will of Daniel Paine, formerly of Providence, deceased.
The will provides for the appointment by the court of new trustees on the joint application of the surviving trustee and the beneficiaries under the trust. The surviving trustee, however, who is also a beneficiary, refuses to join in such an application, though requested so to do by the other beneficiaries, and has demurred to the bill, claiming that this provision for the appointment of new trustees is exclusive, and that inasmuch as the will gives authority to the surviving trustee to act in the trusts, it was the intention of the testator that no trustees should be appointed except in accordance with the provisions of the will, so long as there was a surviving trustee competent and willing to act. *Page 207
We do not think that the provision in the will is to be deemed exclusive. The authority given to the surviving trustee to act in the performance of the trusts is, we think, for the protection of the trust estate, and not with the intention that such trustee should continue to act alone in the performance of the trusts. It was evidently the intention of the testator that there should be three trustees, for he himself appointed that number. He probably did not anticipate the refusal on the part of a surviving or continuing trustee to join with the beneficiaries in an application for the appointment of new trustees, and hence did not provide for that contingency.
The provision for the appointment contained in the will has become ineffectual, but the court has power to make the appointment under its general chancery jurisdiction.
The demurrer to the bill is overruled.