dissenting. The material facts are not in dispute. Four of the five trustees of the Foundation brought suit to recover valuable property held by the testamentary trust. Selig, one of the three testamentary trustees, doubted the validity of the Foundation and consequently doubted its legal right to be recognized as a beneficiary of the testamentary trust. Selig accordingly suggested that the legal existence of the Foundation be put in issue. His two co-trustees, however, considered the Foundation to be a valid trust and refused to join in an attack upon its beneficial interest in the testamentary trust. At this stage of the proceedings there is certainly no reason to doubt the good faith of any of the three testamentary trustees.
Since private trustees, as distinguished from charitable trustees, must act unanimously, it is necessary for them to apply to the court for instructions when a disagreement creates an impasse. Eest., Trusts, § 194. Moreover, a trustee is entitled to the court’s instructions “in respect to such matters as . . . who are beneficiaries of the trust.” Eest., § 259. Thus Selig had a twofold duty to ask the court whether the validity of the Foundation should be put in issue.
When Selig’s petition for instructions came on to be heard, the court simply removed all three testamentary trustees, as far as this case is concerned, and appointed' Mr. Wriglit as trustee ad litem to conduct the litigation. No instructions were given to any one, even to Wright. He was left to handle the case as he thinks best, though the ousted trustees were given permission to participate as individuals and in that capacity to present any contentions they choose. Thus Selig’s reward for performing his duty in the matter was his temporary removal from his trusteeship.
In approving what I regard as an unprecedented and erroneous action by the trial court the majority seem to rely upon two considerations. Primarily, the opinion emphasizes certain familiar duties of every trustee, such as his duty to act impartially toward all the beneficiaries and his duty to avoid any conflict between his personal interest and his obligations as a fiduciary.
I wholly agree with these principles of law, but they are not really pertinent to this case. That Selig is a trustee and his wife a beneficiary of course creates a conflict of interest, but it is one that the law permits, and properly so. If the trustee’s relationship to a beneficiary disqualifies him from acting, then no man can serve as trustee when the beneficiaries include his wife or child and some third person. It goes without saying that the law has not heretofore taken that untenable view. As a matter of fact, it is perfectly permissible for a trustee to be also a beneficiary of the trust, even though a certain conflict of interest undeniably results. Rest., Trusts, § 99.
That the conflict exists is not in itself a basis for removing Selig. If the conflict adversely affected the rights of the other beneficiaries it would be a different matter, but that is not the case. This is a truly adversary proceeding, in which every one concerned is represented by capable counsel. The decision will ultimately be made by the court, not by an interested trustee, and the outcome does not depend upon whether the issues are raised by Selig as trustee, by Wright as trustee, by Selig as an individual, or by another party to the case.
Selig’s duty to act with impartiality toward all the beneficiaries is likewise irrelevant. If tbe Foundation is really void, as Selig contends, bis duty requires tbat be protect tbe other beneficiaries against tbe claims of this fictitious entity. Apparently Wright also intends to require tbe Foundation to prove its validity, but Wright will not be removed for demanding tbat bis adversary prove its case. To require a supposed beneficiary to show tbat be is not an impostor does not seem to me to be a violation of tbe trustee’s duty to act impartially.
Secondarily, tbe majority express a fear tbat tbe court will be unduly burdened with requests for instructions in tbe course of tbe litigation. So far tbe only question asked has been whether tbe validity of tbe Foundation should be put in issue, and tbat point is evidently going to be litigated. It seems unlikely tbat any other instructions will be necessary, but even if tbe requests should prove to be numerous it is tbe chancellor’s responsibility to provide tbe answers.
To sum up, I think tbe chancellor’s action was erroneous, whether it be regarded as essentially an order of removal or an order of appointment. Tbat Selig was related by marriage to beneficiaries of tbe testamentary trust is undoubtedly a matter tbat tbe settlor of tbe trust took into consideration and is certainly not a ground for disqualification. On tbe other band, I do not see tbat Wright’s appointment accomplishes any worthwhile purpose, for be is not in a position to raise any issues tbat would not be presented in any event by tbe ousted trustees or by tbe other parties to tbe suit. It seems to me tbat tbe litigants should be left free to conduct their own lawsuit.
Johnson, J., joins in this dissent.