#### *Catharine Gibbes vs. William J. Smith.*

*Where the*management of tbe trust property is committed, by the instrument creating the trust, to the trustee, the court will not remove him, without his consent, merely because he and the *cestui que trust*disagree as to the management of the property.

*Before*Dunkin, Ch., Charleston,

*February,*1845.

George Gibbes and James Gibbes were owners of Gibbes’ wharf, and in February, 1835, George Gibbes conveyed his undivided moiety of the same to M. P. Walsh in fee, “ in trust for the lawful children of Paul C. Gibbes, now living, to be equally divided among the said children at the period hereafter mentioned, subject, until the said period, to the conditions and charges upon the said property, which are hereinafter declared.” Then follows a long recital of the intention, that M. P. Walsh should have power to manage the property, to make leases, direct repairs, receive rents, defray expenses, and of an intention to provide for the widow and children of Paul C. Gibbes ; and reciting also, that it was deemed expedient for Catharine Gibbes, the widow, to release her dower, the deed goes on to set forth the trusts in this wise, viz: “ that if Catharine Gibbes shall, within one year, release her dower, the trustee shall semi-annually pay over to the *132said Catharine Gibbes, as long as she should continue a widow, and until all the children should die, or the youngest attain twenty-one years, the whole nett income of the property, to be applied by her to the support of herself and children, as she may deem expedientand in case all the children, or the youngest of them, should attain twenty-one years or should die during her widowhood, then to pay her an annuity of 780 dollars out of the rents, during her widowhood; and in case she should' marry again, to pay her 780 dollars per annum during life to her sole and separate use; the surplus to be applied to the minor children as the trustee may deem fit, or invested for the benefit of the parties interested ; with many verbose limitations for the benefit of the “ parties interested and a power for the trustee to resign his trust and appoint another, with the consent of Catharine Gibbes.

On the 31st December, 1835, M. P. Walsh substituted William Smith in his place by deed: and on the 6th October, 1841, William Smith substituted the defendant William J. Smith. On the 1st January, 1844, William J. Smith and James Gibbes united in a lease to George W. Brown, "of Gibbes’ Wharf, for one year, at 5000 dollars, payable on the first days of July and January, to each of them in moieties : and before the end of the year, James Gibbes renewed the lease of his moiety for five years, on the same terms. William J. Smith, th'o'ugh requested by complainant to renew the lease of the other moiety, refused to do so, and endeavored to get possession of an 'undivided moiety by a forcible entry and, detainer, and to take the management of the property into his own hands.

On the application for a *certiorari*to remove the proceedings in forcible entry and detainer from the magistrates to the Court of Sessions, the tenant produced a letter from the plaintiff, acknowledging that he hgd paid her the rent, and that the proceeding was against her opinion : this occasioned a rupture, on which the defendant refused to have any intercourse with plaintiff, or pay her any money, unless on condition of her disavowing the tenant in possessitin. He also commenced an action against the tenant for the rent which plaintiff had received, and refused to resign his-trust, or to authorize the plaintiff to receive the rents of the wharf; .whereupon this bill was filed, which prays that the defendant may be removed from his trust, may be enjoined from suing for the- rent which she has received, and for general relief.

The defendant by his answer insisted, that he assumed the *133trust at request of plaintiff: that G. W. Brown bad leased from the prior trustee, and, in despite of his opposition, laid out large sums in repairs, which, if charged on the owners, would absorb the rent, and having laid out so much in improvements ought to pay a higher rent; instead of which, he obtained from James Gibbes a renewal, and insisted on an abatement. That his accounts, which had never been allowed, showed that he had expended 8,057 dollars in four years for repairs, which would leave only a small balance. That understanding that the said George *W.*Brown had made large sums by the wharf, he intended to take the management of the undivided moiety, and place the son of the plaintiff, as an assistant wharfinger to a chief wharfinger, to be employed, and thereby furnish the son with employment, and advance the interest of the mother and children.' That Brown refused to concur in appointing a wharfinger, and he endeavored to turn him out by a forcible entry and detainer, and failing therein, had commenced his-action for rent. That the complainant is inexperienced in business, and blinded by the policy of the tenant, and he conceives it his duty to retain his trust.

At the hearing, February, 1845, the correspondence between plaintiff and defendant, also a letter from one of the children of plaintiff, expressing his confidence in defendant, and his desire that he should continue trustee, were read.

*The Chancellor.*By the deed of February, 1835, it is provided that the trustee, “ shall have full power and authority to manage the trust property, to lease the same, or any part thereof, and to undertake and direct all such repairs and improvements as he shall deem expedient; also to have and receive, from time to time, the income, rents, issues, and profits thereof, and for these purposes, to appoint and employ all necessary agents, and to sign, seal and *execute,*all necessary and proper instruments of writing *■*and after payment of all expenses, incident to the said purposes, and to the management of the said trust, that he should apply the surplus of the said income, rents and profits, in the manner thereinafter provided and among others, that the trustee *“*shall, semi-annually, and as the rents, issues, and profits of the said property shall be received, pay over to the complainant, as long as she shall continue a widow, and until all the said children shall depart this life, or until the youngest living shall attain the age of twenty-one years, the whole nett income (after deducting all charges and expenses incurred in the management of the trust) to be applied by her toward the maintenance and support of her*134self, arid the maintenance and education of her children aforesaid, in such way and manner as she shall deem expedient.”

The bill charges that the defendant refuses to recognise one George W. Brown, as a tenant of the premises, and has sued him for the last year’s rent, although he has fully accounted to the complainant for the same, and that the defendant insists on taking possession of the premises, and keeping the complainant out of the enjoyment of the rents.

The scope and object of the proceedings, and the prayer of the bill is, that *“*the defendant may be removed from the trust, and restrained and enjoined from suing for the rents of the said wharf.”

To remove a trustee, without his consent, is an undoubted power of this court, but it is rarely exercised. As was justly remarked on one occasion by Lord Hardwieke, “ a trust is an office necessary in the concerns between man and man, and which, if faithfully discharged, is attended with no small degree of trouble and anxiety, and it is an act of great kindness in any one to accept of it.” He further, remarks, that “if there is no *mala Jides,*nothing wilful in the conduct of the trustee, the court regards his acts with a favorable eye.” This was said in reference to the accountability 'of the trustee ; but the observations are at least as pertinent when it is sought to remove him altogether from the trust.

All the material evidence in this cause is incorporated in' the pleadings. By the provisions of the deed, the management of the trust property is committed solely to the trustee ; he is to receive the rents, and after the necessary deductions, to pay the surplus to the complainant for the purposes specified. The court is not prepared to say that he has erred in judgment, in refusing to renew the lease to Mr. Brown, or that the trust estate has been prejudiced by the refusal. But this is not the inquiry. The trustee was to manage the property, lease the same, or any part thereof, and direct such repairs and improvements, as he shall deem expedient. All this is left to his discretion, and not to that of the *cestui que trust.*He is to receive the rent's, or profits, and to pay the same semi-annually to the complainant. She, the complainant, has no authority to interfere in the management of the property, or to receive the rents from the tenants, but as derived from the trustee. Certainly, then, it is no ground for removing the trustee, that he and the *cestui que trust*cannot agree as to the management. If it were otherwise, the principal object of crea*135ting the trust, would, in a majority of cases, be substantially defeated.

It is not suggested, that the defendant has failed in accounting to the complainant for moneys received by him. The bill is not framed with that aspect. In the judgment of the court, no ground has been presented for removing the trustee, or for granting the injunction, and the bill must, therefore, be dismissed; and it is so ordered and decreed.

The complainant appealed from the foregoing decree, on the grounds,

1. That the evidence discloses acts on the part of the trustee, inconsistent with the duty which a trustee owes to the party whose interests are placed under his protection, particularly in bringing an action at law against her tenant, to recover money paid to her ; and that the plaintiff was, at all events, entitled to the aid of the court in directing the trustee to execute his duty.

2. That in this case Mrs. Gibbes is equitable tenant for life, and the trustee has no authority to interfere with her management of that which is her own, except for the benefit of the re-maindermen, and cannot interfere for them without good cause ; and the defendant’s interference is the more indefensible, because he has shown no cause, not even a title to the legal estate.

*Petigru*& *Lesesne,*for the motion.

---- contra.

*Per Curiam.*

We concur in the decree of the circuit court The appeal is therefore dismissed.

Johnson, Johnston and Dunkin, CC. concurring.