Id. at 229. To the same effect was Application of Slocum, 274 A.D. 244, 80 N.Y.S.2d 801 (App.Div. 1948); In re Malone's Estate, 42 Colo. App. 353, 597 P.2d 1049 (1979); 2 Scott, supra, ยง 107 at 845; McAllister v. McAllister, supra, 120 N.J. Eq. at 407; Succession of Dunham, 393 So.2d 438, 454 (La.App. 1980), aff'd in part, rev'd in part, 408 So.2d 888 (1981). More recently in Clark v. Judge, 84 N.J. Super. 35, 62 (Ch. Div. 1964), aff'd 44 N.J. 550 (1965), then Judge (later Justice) Pashman, in ordering removal of a trustee of an inter vivos trust, specifically noted that,
The cases dealing with this issue have stressed that the removal of a trustee is within the trial court's discretion. Dennis v. Rhode Island Hosp. Trust Nat. Bank, 744 F.2d 893, 901 (1st Cir. 1984) (litigation between trustee and beneficiary sufficient cause to remove trustee); Matter of Estate of Malone, 42 Colo.App. 353, 597 P.2d 1049 (1979) (trustee can be removed even if misconduct not proved, if lack of co-operation prevents proper trust administration). Again, the facts in the instant case do not meet the standard justifying removal of the trustee.
Id. at 324 (citations omitted). Matter of Malone's Estate, 42 Colo.App. 353, 597 P.2d 1049 (1979), affirmed the probate court's removal of the respondent as co-trustee of three separate trusts. The court observed:
Proof of actual past wrongdoing by a trustee is not necessary if some other legally proper ground for removal exists. Irreconcilable conflicts between the trustee's personal interests and those of the trust estate and its beneficiaries are such grounds. Getty v. Getty, 205 Cal.App.3d 134, 252 Cal.Rptr. 342 (1988); see also In re Malone's Estate, 42 Colo.App. 353, 597 P.2d 1049 (1979) (hostility and friction between the trustee and the beneficiaries are proper grounds for removal of trustee even if misconduct is not proved); Restatement (Third) of Trusts ยง 37 cmt. f(1) (2003). However, a trustee's conflict of interest does not necessarily mandate an automatic denial of all compensation.
The litigation was unsuccessful, and a dispute over whether to appeal arose between Cavanaugh and appellees, CNB, John C. Malone, and Alpha Manley Chase, who were personal representatives for the estate and co-trustees. During this dispute, relations between the co-trustees deteriorated to the point that Cavanaugh was removed as attorney for CNB. Nevertheless, he continued in his efforts to participate in the tax litigation, which eventually led to a petition to remove him as co-trustee. The probate court granted the petition, and the order was affirmed by this court on appeal. In Re Estate of Malone, 42 Colo. App. 353, 597 P.2d 1049 (1979). A petition was filed thereafter by a beneficiary under the trust for a determination of rights and for an accounting.
On May 17, 1977, Cavanaugh was removed as co-trustee. See In re Estate of Malone, 42 Colo. App. 353, 597 P.2d 1049, (1979). On September 15, the court granted defendants' motions for summary judgment of dismissal, and on October 11, Armour, who had not been a party in the original proceedings, filed a motion to intervene, and she and Cavanaugh filed similar motions to vacate the summary judgment.