Opinion
February 20, 1935.
Cadwalader, Wickersham Taft, for the trustees.
No other appearances.
The petition filed in this trustees' accounting sought a judicial settlement of the account, permission to one of the trustees to resign and the appointment of a successor trustee. Because of the death of one of the parties interested in this proceeding, the settlement of the account and the entry of the decree have been delayed. On the application of the attorneys for the petitioner this court accordingly made an intermediate order permitting the resignation of one of the trustees who was advanced in years and in poor health. Such order provided, however, that the resigning trustee would not be discharged from liability until the entry of a decree settling the account.
The remaining trustee, who is also a life tenant and the remainderman of the trust, now seeks to amend the original petition so as to withdraw the application for the appointment of a successor trustee.
If this request were granted, the assets of this trust would be administered by a person who is a life tenant and the sole remainderman thereof.
Such a situation is wholly at variance with the policy of this court as stated in my recent decision in Matter of Connolly ( 158 Misc. 93). A trust should not be administered solely by a person who is a life tenant and remainderman thereof. ( Woodbridge v. Bockes, 170 N.Y. 596; Weeks v. Frankel, 197 id. 304; Brown v. Spohr, 180 id. 201.)
The application to dispense with the appointment of a successor trustee is, therefore, denied. If the person whose appointment was originally sought is unable to act, the parties must designate another suitable person to be appointed successor trustee. The decree on accounting will not be signed and the trustees will not be discharged unless a provision for the appointment of a successor trustee is incorporated in the decree.
Proceed accordingly.