Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1917-11-08
DECISION AFFIRMS THE
PROBATE COURT DECREE
And Appeal Is Dismissed by Chief Jus
tice Cornish in Matter of Martha j.
Harris ct ais, Apl'ts, VS.. Horace
North

/ The appeal is dismissed with costs and
the decree of the probate court is af-
frmed in the matter of Martha J. Har-
ris of Augusta ct ais, appellants from
/ the decree OF the judge of probate, vs..
! Horace North of Boston, trustee, by a
decision by Chief Justice Leslie c. Corn
sh, which has just been filed at the
office of the clerk of courts of Kenne-
, bee county. Hearing was held before
Chief Justice Cornish upon the appeal
from the decision of the judge of pro-
| bate upon the final day of the October
| term Of the supreme court for Kenne-
bee county this year.
Chief Justice Cornishs decision reads
as follows:
This il an appeal from the decree OF
the Judge of Probate of kennebec couu-
u refusing to appoint new trustee
to act with Horace North, the surviv-
ing trustee of the will of the late James
! w. North, James W. North, Jr., one Of
the original trustees having deceased on
! June % 1908. The appellants contend that
! the judge of probate is compelled to
make the appointment under Il. S Q96)
I Ch 70, sec. 49,
This section provides as follows: when
a trustee under a written instrument
declines, resigns dies or is removed, be
fore the objects thereof are accomplish
ed, if no adequate provision is made
4 therein for supplying the vacancy. the
probate court or supreme judicial court
t shall. after notice to all persons in
terested appoint a new trustee to act
alone or jointly with the others It's the
case may be
The sole question TO he determined
therefore is whether adequate provision"
is made in the will itself for supplying
the vacancy caused by the death of
]. ". North Jr.. or in\ other words,
whether his death created vacancy
which required the appointment of sue
cessor under the Statute. The Judge or
probate held that it did not and l think
his ruling was correct.
It must be admitted that tcstator
has The legal right TO create a trust
and specify what trustees shall manage
it. He can provide originally for two
trustees and for the appointment of
successor in case OF vacancy or he
can provide that in case of such vacan-
cN the surviving trustee dloie Slidll VII
ttnue to manage the estate. or the will
may be silent as to his wishes. Tn Dix
on V. Homer, 10 Cush. Al. so confident
~ relied on by the appellants. the court
held the will to he silent on the sub
ject and therefore that there was pre-
SUMPTION that the trust was to he exc
cuted by two as originally provided and
that the statute became operative,
In the case at bar the Will is not
silent, but shows. I think, plain in
tention on the part of the tcstator 10
have his trust estate managed by his
two sons, James W., ,Jr., and Horace
or by the surviving son. in case one
should die or resign. and not to intro
duce a stranger to the position until
both these sons had deceased or one or
both had been removed. If this is true
then the wish of the testator should
he observed, and the statute cannot
thwart it,
In item the father deviseS the real
estate constituting the corpus of the
trust to these two sons land the sur
viyor of them for and during their nat
ural lives and the life Of the survivor
of them in trust to and for the follow
ing uses TO VII: tne SalC James w
North. Jr.. and Horace North and the
survivor of them shall receive the
rents and profits Of the estate" and
after deducting all expenses and
charges shall distribute the balance as
therein specified This is the work
which the trustees are to do and I'M
der this clause the surviving trustee
alone is to do it. He is to have no sue
cessor or other trustee TO act with him.
Under item Q. if the buildings be de-
stroyed by fire the trustees and the
survivor of them are authorized and
directed TO rebuild.
Item 10 shows the manifest inten-
ton of the testator. viz; 1t is my will
that James w. North. Jr, and Horace
North as trustees aforesaid. shall not
be required to give other than their
own bond without sureties for the
faithful performance of the trusts and
the Judge of probate is hereby author
lied and requested to remove at any
time either or both of said trustees
and appoint one or more trustees in
their stead. if in his opinion the inter