2023 New York Laws › EPT - Estates, Powers and Trusts › Article 7 - Trusts › Part 2 - Rules Governing Trustees › 7-2.5 - Suspension of Powers of Trustee in War Service

§ 7-2.5 Suspension of powers of trustee in war service
(a)  Whenever a trustee of an express trust is engaged in war service,
as defined in this section, such trustee or any other person  interested
in  the  trust estate may present a petition to the supreme court or the
surrogate's court, as the case may be, to suspend  the  powers  of  such
trustee while he is so engaged and until the further order of the court,
and  if  the  suspension  of such trustee will leave no person acting as
trustee or leave a beneficiary of such trust as the only acting  trustee
thereof,  the  petition  must  pray  for  the appointment of a successor
trustee, unless a successor has been named in the trust  instrument  and
is  not  engaged in war service or is not for any other reason unable or
unwilling to act as such trustee.
(b) For the purposes of this section, a  trustee  is  engaged  in  war
service in any of the following cases:
(1)  If  he is a member of the armed forces of the United States or of
any of its allies, or if he has been accepted for such  service  and  is
awaiting induction.
(2)  If  he  is  engaged  in  any  work  abroad  in  connection with a
governmental agency of the United States or with the American Red  Cross
Society or any other body with similar objectives.
(3)  If he is interned in any enemy country or is in a foreign country
or a possession or dependency of the United  States  and  is  unable  to
return to this state.
(4) If he is a member of the Merchant Marine or similar service.
(c) Where the application is made by a trustee engaged in war service,
notice  shall  be  given to such persons and in such manner as the court
may direct. Where the application is made by any other person interested
in the trust estate and the trustee is in the armed forces of the United
States, notice shall be given to such trustee  in  such  manner  as  the
court  may direct. In every other case, where the application is made by
a person other than the trustee, notice thereof shall be given  to  such
persons and in such manner as the court may direct.
(d)  Upon  the  filing  of the petition and proof of service of notice
prescribed in paragraph (c), the court may,  notwithstanding  any  other
provision  of  law,  suspend the trustee engaged in war service from the
exercise of all of his powers and duties while engaged in  such  service
and  until the further order of the court. The order may further provide
that the remaining trustee or, if there is none, the successor named  in
the  trust  instrument or appointed by the court may exercise all of the
powers and be subject to all of the duties of the original trustee.
(e) The successor trustee shall be limited to commissions as  computed
under  SCPA  2308 or 2309, whichever is applicable, upon income received
and disbursed and upon principal disbursed.   Commissions  may  also  be
allowed under 2308 or 2309 upon rents if he is authorized or required to
collect  the  rents  of  and  manage  real  property.  In  case  of  the
resignation or removal of the suspended trustee, or in the event of such
trustee's death, the foregoing basis for computing the commissions shall
not apply and his commissions shall be computed in the  same  manner  as
those of any other trustee.
(f)  When the suspended trustee ceases to be engaged in war service he
may, upon application to the court and upon such notice as the court may
direct, be reinstated as trustee if any of the  duties  of  such  office
remain  unexecuted.  If  the  suspended  trustee is reinstated the court
shall thereupon remove his  successor  and  make  such  other  order  as
justice  requires,  but  such  removal  shall not bar the successor from
subsequently qualifying as a trustee if for  any  reason  it  thereafter
becomes necessary to appoint a trustee.