On December 2, 1872, tbe defendant corporation mortgaged certain real and personal estate to Samuel E. Hersey and Benjamin E. Smith, as trustees to hold and manage the same for the protection and security and ultimate payment of those holding their bonds.
By article eleven it is provided that, “ in case of the death, mental incapacity or resignation of either of said trustees, for the time being, in the trusts herein set forth, all the estate, right, interest, power and control of such trustee shall be divested and cease; and the supreme judicial court of said state of Maine shall, upon the request in writing of one or more of said bondholders, or of the directors of said party of the first part, appoint such successor.”
Samuel E. Hersey, one of the trustees, having deceased, a majority in interest filed a petition for the appointment of one to fill the vacancy. Notice to all persons and corporations interested was ordered to be and was duly given. At the time designated for hearing, counsel appeared for the defendant and, according to the docket entry, desired “ to be heard on the appointment of trustees.”
At the hearing a trustee was appointed, who accepted his appointment, and the court ordered that B. E. Smith, the trustee named in the mortgage, execute forthwith all proper conveyances to vest title in such co-trustee.
Notice having been duly given, and the defendantshaving been heard as to the person to be appointed, the decision of the presiding justice making the appointment is not subject to exception. At any rate no objection is made to the fitness of the person named.
It is objected that the prior proceedings, as provided by B. S., c. SI, § 47, as amended by the act of 1876, c. 105, have not been had. But, by c. 105, the provision for a meeting of the bondholders and the choice of a trustee does not apply, except “ when no other method of filling vacancies is specifically provided in the appointment” of trustees. Here it is done, and the mode provided in the deed of trust has been followed.
By the act of 1878, c. 8, where in the deed of trust “ no ade*399quate provision is made for supplying the vacancy,” it may be filled by this court, “ after notice to all persons interested,” as has been done.
The defendants cannot except to the order requiring Smith to execute proper conveyances so as to vest title in his co-trustee. Such order is in accordance with the terms of the trust deed and with the act of 1878, c. 8, § 2, which provides that, “upon the appointment of a trustee under the preceding section, the court may order such conveyance to be made by the former trustee, or his representative, or by the other remaining trustee, as may be proper or convenient to vest in such trustee, either alone or jointly with the other, the estate and effects to be held in trust.”
The proceedings in England are by bill in equity for the appointment of a new trustee, and the court usually in the decree appointing one embraces a direction for a proper conveyance to be executed to him alone, or to him jointly with the continuing or remaining trustees, by all the requisite parties, whether remaining trustees, or heirs and representatives of the last survivor or trustees, who have been removed from office. Perry on Trusts, g 281. With us the cumberous proceedings of a bill are rendered unnesessary by the provisions of our statute.
The trustee, Smith, has not entered an appearance, and if he had, it is not perceived what objections he could have to making all proper conveyances as ordered.
Exceptions overruled.
Walton, Daneqrth, Virgin, Peters and Libbey, J J„, concurred.