Opinion
09-21-1807
Dunscomb v. Dunscomb and Others
SYLLABUS
In this case the only question was, whether the Court could, under the will of Andrew Dunscomb, deceased, appoint another trustee, in the room of the one appointed by the testator, as she was dead; the circumstances being the following:
The testator in the commencement of his will desired his wife Philadelphia Dunscomb " to be put into possession of all his property both real and personal for her use, in trust," & c. After specifying the various trusts, which were chiefly for the benefit of his children, he concluded with these words: " I constitute my wife sole executrix, leaving it with her and at her pleasure to appoint an agent or agents to assist her. From her well-known attachment to her children, I confide in her care of what may come into her hands, and also of an application according to my will and desire as expressed herein." No provision was made in the will for the appointment of another trustee in case of her death. She intermarried with William Dawson, and afterwards died intestate.
The bill was filed on behalf of Andrew Bedloe Dunscomb, one of the infant children, by William Dawson, his next friend, praying this court to appoint another trustee in her room, and making the other children defendants, who filed their answer by Philip Duval, their guardian, specially assigned for that purpose; in which they expressed their consent.
OPINION
PER CURIAM.
The only doubt grows out of the will: but it may be done, upon giving bond with approved security to the Judge of this Court and his successors in his office, conditioned to discharge the duties imposed by the testator's will upon the former trustee, which remain unperformed, for the benefit of the testator's children. The penalty of the bond should be equal to double the value of the trust estate.
Philip Duval was accordingly appointed, and gave bond and security in the form prescribed by the Court.