Foss v. Sowles
| Decision Date | 12 April 1890 |
| Citation | 19 A. 984,62 Vt. 221 |
| Parties | JAMES M. FOSS, TRUSTEE, v. EDWARD A. SOWLES |
| Court | Vermont Supreme Court |
JANUARY TERM, 1890
The judgment is reversed and judgment rendered for the defendant to recover his costs.
E A. Sowles and H. A. Burt, for the defendant.
The exceptions taken, on the trial in the County Court raise the questions:
First. Had the Probate Court jurisdiction to remove the defendant from being trustee and to appoint the plaintiff trustee in his stead, under the circumstances in which it was attempted to be done?
Secondly. If so, can the plaintiff maintain an action of general assumpsit to recover the trust fund on the facts found by the County Court?
I. By the will of Susan B. Bellows, duly probated, the defendant was made trustee of the fund in controversy, with the provision in the will that he should not be required to give any bond, and giving him general discretionary powers in regard to the investment of the fund, and also the right to appoint his successor. He was executor of the estate. The estate was settled, and he was ordered to retain the trust fund in his hands, as trustee, and to administer the trust according to the terms of the will. At this time the defendant was in good financial standing. Afterwards he became involved in financial embarrassments and ceased to pay the income to the cestui que trust. Thereupon the cestui que trust commenced proceedings in the Probate Court to have the defendant give a bond for the faithful discharge of his duties as such trustee. The Probate Court is given general equity powers in regard to trusts and trust funds, that arise in the settlement of estates, secs 2284 to 2300, R. L. By s. 2284 it is provided that a trustee appointed in a will shall give a bond to the court for the faithful discharge of his duties, as such trustee, "but such bond shall not be required in a case in which the testator in the will appointing him has so ordered, unless, from a subsequent change in his circumstances, or other sufficient cause, the Probate Court deems it proper to require a bond." Under this section the Probate Court required the defendant to give a bond. We think this order the Probate Court could properly make. The defendant appealed from this order and the matter was brought before this court, 57 Vt. 583 at 585, in which it was held that no right of appeal from such an order existed. Upon this decision being certified back to the Probate Court, that court gave a further time in which the defendant was ordered to comply with its order. The defendant did not comply with the order. The court thereupon, without notice to the defendant, declared that the defendant had declined the trust and appointed the plaintiff such trustee. The defendant contends that this action of the Probate Court, being without notice, was void for want of jurisdiction, and that he still is trustee, notwithstanding such action. The Probate Court has not general equity jurisdiction, and being of limited jurisdiction in this respect must proceed in accordance with the statute conferring jurisdiction. S. 2288 provides that a person appointed as trustee, who neglects to give a bond when required, within the time directed by the Probate Court, shall be considered to have declined the trust. The defendant urges that the word "decline" can only relate to a trustee appointed by a will, who has not accepted the trust and entered upon the discharge of its duties; that in such a case the proper term is "resign," which is used in the section next following and in some other sections. While there is some countenance given to this claim by the language used in the different sections of the statute, it does not commend itself to our judgment. We think s. 2288 was intended to apply as well to the case of a trustee, who had accepted the trust and entered upon the discharge of its duties, as to the case of one, named as trustee in a will, who had not accepted the trust. Otherwise there would be no statute applicable to the case of the former. We cannot think that the Legislature intended to leave such a case unprovided for. Nor is such contention consistent with the other provisions of the statute. But the defendant further contends that such declination did not create a vacancy in the trusteeship, until accepted by the Probate Court, and that he was entitled to notice in regard to when it would act upon the declination, and so have an opportunity to act in regard to the appointment of his successor, as provided by the terms of the will. This contention has the sanction of the language of the statute. The next section
of the statute, 2289, reads: "A trustee may decline, or resign his trust when the Probate Court judges proper to allow the same." Hence the trusteeship did not become vacant by his legal declination thereof, arising from his failure to give a bond as required. The Probate Court must accept his declination, or make an order removing him. S. 2290 gives the Probate Court power to remove a trustee for various causes, but requires that it shall be done after giving notice to the trustee. Whether the removal is occasioned by the acceptance of the voluntary or legal declination of the trust, or from some other of the causes assigned in this section, matters not in regard to the requirement of notice. It is as much a removal when occasioned by the legal declination, arising from failure to comply with its order to give a bond, as when made for any of the other causes assigned. This section was evidently intended to apply to cases of a removal of an existing trustee from whatever cause, and makes notice to
the trustee a pre-requisite to the court's jurisdiction to hear and make the order. By the order appointing him trusteee and...
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