#### The Massachusetts General Hospital *et al. versus*Francis Amory

Devise of a sum of money to two persons named, in trust, to be invested in safe and productive stock, the income thereof to be paid to the testator’s widow during her life, and after her death the fund to be transferred to certain public institutions; and in case the trustees named or either of them should resign the trust, or die before having fully performed and executed the same, *u*the judge of probate having jurisdiction of the will, shall forthwith appoint one or more trustee or trustees in place of such trustee or trustees so failing.” The trustees named having accepted the trust, one of them died and the other afterwards resigned, » before the trust had been fully performed. It was *held,*that the appointment by . the judge of probate, of one person as sole trustee, was not a compliance with the intent of the will, but that two trustees should be appointed.

*It seems*that by *St.*1817, *c.*190, § 40, the foregoing direction in the will in regard to the appointment of trustees, was binding on the judge of probate.

But if he was not bound to pursue such direction, he was required by the 39th and 40th sections of the statute, to appoint one trustee in the place of the trustee dying, and another in the place of the one resigning.

John McLean bequeathed to Jonathan Amory and Francis Amory jointly the sum of 50,000 dollars, in trust to lend the same upon sufficient security or to invest the same in safe and productive stock, (which sum, so invested, was to constitute a separate and distinct fund,) and to pay over the income to his widow Ann McLean during her life, and after her decease, to transfer one half, in actual value, of the entire fund, to the President and Fellows of Harvard College, and the other half to the Trustees of the Massachusetts General Hospital. The testator requests and directs that Jonathan Amory and Francis Amory may not be required to give any other than their own bonds respectively, without sureties, for the performance of the trusts.

The will contains the following clause. “ And in case the said Jonathan and Francis or either of them should not survive me, or should decline accepting said trusts, or after having accepted the same, should by writing under their hands respectively, addressed to the judge of probate having jurisdiction of this my will, resign the same, or should die before having fully performed and executed the same, then try will is, that such judge of probate forthwith appoint one or more trustee or trustees in place of such trustee or trustees so fail-*451mg, and thereupon tnat the several bequests herein before made to them in trust, are hereby transferred to, and shall take effect and vest in the trustee or trustees so appointed, to

be held by them upon the like trusts, in all respects, as are herein before specified.”

In February 1831, Francis Amory, the surviving trustee, presented to the judge of probate for the county of Suffolk, who had jurisdiction of the will, a petition that he might be discharged from the trust; and Ann Lee (formerly Ann McLean) the widow of the testator, requested that John A.

Lowell might be appointed trustee under the will. At the same time the Massachusetts General Hospital and Harvard College presented a petition, requesting the judge of probate “ to appoint *two*suitable persons as trustees under said will, to whom said property shall be conveyed and who shall give bonds for the faithful performance of their duty as the law provides.”

At a probate court held in March 1831, the judge appointed John A. Lowell sole trustee of the sum bequeathed in trust as before mentioned, such trustee first giving bond for the faithful execution of the trust.

From this decree the Hospital and the College appealed, for the following reasons ; —

1. Because the judge of probate having undertaken to act in the premises, and having accepted the resignation of Francis Amory the surviving trustee, appointed only one trustee in the place of Jonathan Amory deceased and Francis Amory resigned, the two original trustees, when by the terms of the will he was bound to appoint two trustees for the purpose of perpetuating the trust.

2. Because the judge of probate, in refusing to appoint two trustees, wholly disregarded the petition of the appellants, when they had the same right to have the original fund protected and preserved, as the widow, to have the income secured to her.

3. Because the decree is injurious to the *cestui que trusts*and is erroneous in point of law.

The appellee, in a written answer to the reasons of appeal, contended that the judge of probate was not bound, upon a *452just interpretation of the will, or of the statutes on this subject, to appoint two trustees.

The will directs in substance, that in the event of the resig nation or the death of the trustees, after having accepted the trust, the judge of probate shall appoint *one*or *more*trustee or trustees in the place of such trustee or trustees so failing.-

The case has not occurred, in which the judge of probate could act under and by virtue of the will in making the appointment. The *St.*1817, c. 190, § 40, intends that the judge of probate shall supply trustees only where no provision has been made by the testator for perpetuating the trust. If the testator did make such provision, then it is not a subject of probate jurisdiction, but the direction of the will must be followed or resort be had to the equity side of this Court. Requesting a public officer to make the appointment, is not a mode of perpetuating the trust, within the law.

The authority of the judge of probate is restricted only by the 40th section, and to the cases of non-acceptance of the trust, the death of the trustee after having accepted, and noncompliance with the provision of the statute requiring bond. But the surviving trustee, the appellee, comes not within either of these cases ; he accepted and now resigns. It is a substitute for him, and not of the co-trustee, who died some years since, that is sought for.

The 39th section allows *any*trustee, on request in writing, to resign,' &c. first accounting and paying over the trust property to *such other person*as the judge shall appoint a trustee in his stead. And the 41st section provides, that whenever *any person*shall be appointed and substituted as a trustee, by the judge of probate, in the place of *any former trustee*who *may have*resigned, &c. the *person*so appointed and substituted &c. shall give bond with sufficient surety or sureties.

These sections contemplate the appointment of one trustee only ; and it is insisted upon, that if the case oi the appellee is not provided for by the 40th section, it is left wholly at the discretion of the judge of probate to appoint one or more trustee or trustees as his substitute.

The appellee then stated several reasons, grounded on ex*453pediency, why the appointment of Lowell as sole trustee should be confirmed.

S. *Hubbard*for the appellants.

*Sullivan*and *Jlylwin*for the appellee.

*March Z6th*

*April*6th.

Wilde J.

delivered the opinion of the Court.* This case comes before us on an appeal from a decree of the judge of probate for this county, appointing a trustee under the last will and testament of the late John McLean, in the room and stead of the appellee, the only surviving trustee under the will, who had made application to the probate court for permission to resign his trust and to be fully discharged therefrom, in conformity with one of the provisions contained in the will.

From the reasons of appeal we do not understand that the appellants make any objection to the appointment of Lowell, the new trustee; but they contend that by the true construction of the will, and of the statute relating to the matter, the judge of probate was bound to appoint another trustee to act jointly with Lowell for the purpose of perpetuating the trust; and that the refusal of the judge of probate to appoint another trustee in pursuance of the application and request of the appellants, who have an interest in the trust fund, is erroneous and ought not now to be affirmed.

[Here the judge stated the bequest of the 50,000 dollars and recited the clause in the will before quoted, respecting the appointment of new trustees.]

The first question arises on the construction of this clause in the will. It hardly, however, admits of a question, for the intention of the testator is manifest, and the language of the will clearly directs, that when *either*of the trustees should die, or resign his trust, &c. a new trustee was to be appointed. The testator appointed two trustees to manage the fund, for such reasons as were satisfactory to him, and the same reasons must have operated on his mind in providing for continuing the same number of trustees, until the interesting and important trusts created by the will should be fully performed and executed. The language of the clause in the will referred to cannot be reconciled, by any reasonable construction, to the *454supposition that this matter was intended to he left to the discretion of the judge of probate.

But it has been argued, that the directions in the will as to the appointment of trustees, whatever construction may be given to them, were not binding upon the judge of probate, and that, by law he had authority to appoint one or more trustees at his discretion. No authority was cited to support the position, that the directions of the will are not binding, ano it is not easy to perceive any good reason why they should! not be binding in respect to the security and management of the trust fund, as well as m respect to the disposition of the income of the fund, and of the fund itself. On the contrary, there is a strong implication that such directions are binding upon the judge of prohate, in the 40th section of the statute of 1817, c. 190.

In that section it is enacted, “ That in case any person, who has been or shall be appointed a sole trustee, or any two or more persons, who have been or shall be appointed joint trustees in any last will, *no provision being therein made for perpetuating such trust,*and such sole trustee or any one or more of such joint trustees shall decline the acceptance of the trust, or shall die either before or after having accepted the trust, or shall neglect or refuse to comply with the provisions of this act, the respective judges of probate shall, after notice to the *cestui que trusts,*appoint one or more suitable persons to be trustee or trustees, in the place of the trustee or trustees so dying or declining to accept as aforesaid.” The limiting the power of the judge of probate .under the statute to cases where no provision is made in a will for perpetuating the trust, is not, it is true, a declarative law, that where provision is made for that purpose it shall be binding, but it contains an implied declaration to that effect, which would seem to be equivalent to an express declaration.

We, however, consider it immaterial in this case, whether the directions in the will are binding or not; because if the statute of 1817 regulates the power of the judge of probate, we think it must lead to the same conclusion ; and that under that statute the judge of probate was bound to appoint two trustees.

*455By the 40th section he was bound certainly, after, the death of the late Jonathan Amory, to appoint a new trustee in his place ; and he was equally bound to make the appointment on application of any party interested in the trust fund, after he had accepted the resignation of the other trustee.

By the 39th section any trustee is permitted, upon request m writing, to resign his trust, “ first accounting for and paying and delivering over such estate, as shall have come to his hands by virtue of such trust, to such other person as the said judge shall appoint a trustee in his stead.” By this section, if there had been no directions in the will for perpetuating the trust, or if the directions were void, or of no binding effect on the judge, he would have been bound nevertheless to appoint a new trustee, in the place of Francis Amory, after he had accepted his resignation and upon his compliance with the requisitions of the statute ; and Lowell was appointed in the place of Francis Amory ; but no one was appointed to supply the place of the deceased trustee, although application was made by the appellants for the appointment of two trustees. This, we think, was not in compliance with the directions in the will for perpetuating the trust, nor with the requisitions ol the statute.

We think therefore that an additional trustee must be appointed,' and the papers are to be remitted to the prooate court for further proceedings.1

*

*Putnam*J. did not sit in the case.

1

 See Rev. Stat. c. 69, § 8.