Howard v. Waters

Cochran, J.., delivered the opinion of this Court: This appeal was taken from a decree by which tbe appellee was appointed to succeed Freeborn N. Waters, deceased, in tbe administration of a trust created by the will of Charles Waters. It appears that this testator, after devising a large estate to Freeborn Cf. Waters, upon certain trusts, further pro ⁵³⁴ viclcd by his will, in case the trustee should be unwilling' to continue in the trust, and should settle his trust account, that any Court having proper jurisdiction, should, upon his application, release and discharge him therefrom, and appoint some other honest, fair and competent person to take charge of the trust estate and administer the trust, and that the Court should, in making such appointment,, adopt, as far as practicable, the recommendation of the trustee as to his successor. Shortly after the decease of the testator, the trust was brought within the jurisdiction and control of the Court below, by certain proceedings taken for its management and settlement.

Freeborn G-. Waters5 accepted the trust, and continued to act as trustee until about the middle of July 1858, when he deceased, leaving a will containing a clause recommending the appellee as a proper person for appointment as his successor in the trust. The Court, entertaining the opinion that the clause contained in the will of Charles Waters, vested in Freeborn G-. Waters a power to appoint or recommend his successor, and that the clause contained in the will of the latter, recommending the appellee, was a valid execution of that power, and being satisfied of the competency and qualifications of the appellee, passed the decree appointing him trustee, and directing the trust estate to be delivered into his hands.

It was conceded, on both sides, that the appointment of the trustee was a matter resting in the discretion of the Court, and the material question to be considered, is whether the decree by which the appointment