The Portland daily press., 1885-03-10


Nous action among the trustees. Since its
passage, the court has been called upon by
both parties to interfere in relation to the
management of the estate.
Mr.. Rand by his answer justiies his conduct
as trustee in relation to his individual control
of the assets denies the insulting language and
conduct charged against him in the bill, and
AYERS, that she has not been heretofore aware
that the safety and interests of the trust estate
imperatively required that the imaginary, or
even real dignity of any of the trustees should
be maintained at an unreasonably high point"
He denies that he has been guilty of any
breach Of trust, and AYERS that he has at all
times been ready to give proper attention to
the trust and to confer with his associates, and
has always conducted himself properly, and
acted in accordance with law, touching the
management Of the trust estate. The orators,
bill waived the customary oath to the re-
spondent's answer, and the same therefore is
not evidence of the facts it recites, (Revised
Statutes, chap. H. sec. 15.)
Had the respondent by answer in the nature
of cross bill sought direction as trustee and
ayerred willingness to comply with
the directions, or suggestion Of the
court in the management of the
trust, different issue would claim the consid-
Grafton Of the court. This he has not seen fit
to do but demands decision upon the direct
allegations ofthe bill, and claims that the PRAYER
thereof for his removal as trustee should be de-
MED, leaving him to conduct his trust in such
manner as he fancies himself legally bound to
do
It may be said that the trust has not suffered
any direct peeuniary loss by the conduct of
the respondent as trustee, but it does appear
that his conduct touching trust affairs, and his
treatment of his associates has been, if not in
actual violation of law, at least unwise, petu-
LIANT indiscreet and unreasonable. That the
trust affairs have thereby been thrown into
confusion, and his associates and persons deal
ing With the estate, annoyed, hindered and
delayed and the trust deprived of that consid
crate, cool, judicious and discreet management,
that its welfare requires, and that the trust es-
tate has been left without such discreet con-
troll from the trustees as the law requires
should be accorded to it.
Courts of equity have always guarded trusts
with jealous care. They have always required
from trustees faithful and discreet conduct in
the exercise of their Office. Testators have a
right to appoint trustees to control the trusts
they see fit to create, but courts of equity must
see that these trusts are executed in
accordance with law and the tesla
taments creating them. Testamentary
trustees should not be displaced for
trivial causes or honest errors in Judgment re-
garding trust affairs. The welfare of the trust
is the great consideration which governs a
court in dealing with the constituted control
of trust estates.
1t has been said, that while trustee is not
ordinarily liable for trust funds held by CO.
trustee, yet if the CO. trustee be allowed to
keep and deal with the trust moneys contrary
to the trust the trustee so permitting it viii be
charged with any loss occasioned thereby.
(Brice VS.. Stokes, II Yes. 319.) So if a
trustee parts with the exclusive control of a
trust fund by putting it to the joint deposit of
himself and stranger, and the depository be-
comes insolvent and the fund is lost, the trus-
tee must restore the loss. galway VS.. Salway,
2 Russ. s. My. 215) Upon the same priuci-
pie trust funds "ought not to be left under the
entire control of a CO. trustee. Thus if money
is paid into a bank to the credit of the trust
estate, it should be in the names of all trustees
jointly, and be payable upon their joint order
or check" white s. Tudors leading cases in
equity, 1857. Clough VS.. Dixon, Sim. 594.
Walker VS.. Symonos, Swanst. l. Clark
Executor VS.. Clark, 5 Paige, 1888. Story's Eq.
Jur. secs. 1875 & 1888, 1284) 1t is the duty
of each trustee to exercise diligence in the care
of trust funds, and if one trustee places them
beyond his control, within the sole power and
disposition of an associate he thereby rem
ders himself liable for the default of the latter.
(Mumford VS.. Mari, 6 johnson, CHI. 7. Weet-
jim VS.. Vibbard Hun. 1863 So it was held,
that where each of two trustees retained a
moiety of funds held by them jointly in trust,
and one trustee was guilty of breach of trust
in the care Of the bonds retained by him, the
the other trustee was liable to make good the
loss. (Lewis VS.. hobbs, L. r. Oh. Div.
591-4.) The Vice Chancellor said, al think
that the defendant did not discharge his duty
in allowing his CO. trustee to retain possession
Of one half Of the bonds, and the course pur-
sued enabled his CO. trustee to improperly deal
with them. The duty of the trustees was to
make the investment in the names of BOTH SO
that the bonds should not be transferable with
out the action of both or as the bonds were
transferable by delivery, care should have been
taken that there could not be any improper
disposition of them"
All the authorities agree, when trustee has
notice that the trust funds in the hands of an
associate are liable to loss, that it is his duty
to take measures to prevent it. Can it be said
that it is unreasonable for such trustee, with
out present apprehension for the safety of trust
funds in the exclusive control of an associate,
when they amount to a sum so large that COM
mon prudence requires their deposit in a suit
able depository for safety, to insist that such
deposit should be made to their joint credit ?
Does not peremptory refusal to accede to
such reasonable request become tantamount to
a refusal to execute the duties Of trustee in
such prudent manner as the law requiress
Applying these ancient rules as declared by
the highest courts of chancery, what can be
said in justification Of or excuse for the con-
fFE
to the safety vault, where all the securities Of
this trust estate were on deposit, and severing
from the bonds coupons to the amount of near
$4,000, that were not then due, but to be-
come due stately during the two following
years. If he feared the safety of them, should
he not have consulted with his associates and
caused the removal of the bonds alsos No
satisfactory reason has been given for this con-
duct; the only pretended excuse for it is, that
he did it, and had right to do it.
1t is familiar law that to courts of equity is
conhded the power TO remove and appoint
trustees. The orators in this bill demand the
removal of their associate, the respondent
from his office as trustee, for causes stated in
their bill. The answer calls for the judgment
of the court upon the charges in the bill. 1t
takes no middle ground. 1t demands the de-
NAL of the relief sought The court must
therefore decide, whether In the exercise of a
sound discretion, under all the circumstances
the respondent shall be removed from his
office of trustee.
All the ceStuis que trust are parties to the
bill, and its charges are confessed by all the
respondents, save the respondent Mr.. Rand,
the daughter of the testator and her minor
children who answer by their father, Mr.
William H. Clifford, solicitor of this court,
their guardian, and the minor children of the
orators, who answer by Mr.. Philip G.. Brown,
their guardian GG Item, and neither admit nor
deny the charges of the BILL but submit their
interests to the Judgment of the court. Mr.
Clifford answering for his wards says, that as
to the charges of the bill he is unable to
answer, and therefore neither admits nor de-
MES the same: so also does Mrs. Clifford, who
alleges that up to the time of the filing of the
bill, both the income of her special trust es-
tate, as well as her share of the income of the
residuary estate, have been promptly and fully
paid to her, and both she and her husband as
guardian Of her children, allege that they do
not desire the removal of Mr.. Rand, or the
appointment of a receiver, but that they are
satisfied with the conduct of the affairs of the
estate up to the date of said bill by the board
of trustees as constituted under the will of
Mr.. Brown. At the hearing of the cause Mr..
Clifford, the solicitor for his wife and guardian