
    In the Matter of the Trusteeship under the Will of Maria T. Hawke, Deceased. Marie E. Daution, Appellant; Francis E. Hawke, Respondent.
    First Department,
    March 2, 1928.
    Wills — trusts — death of trustee — proceedings under Real Property Law, § 111, for appointment of substituted trustee — disinterested person or corporation should be appointed.
    Upon the death of a testamentary trustee a suitable disinterested person or corporation should be made the substituted trustee.
    Accordingly, in a proceeding under section 111 of the Real Property Law, the stepmother of interested parties, who is the sole executrix named in an unprobated will of the deceased trustee, her husband, should not be appointed substituted trustee.
    Appeal by Marie E. Daution from two orders of the Supreme Court, entered in the office of the clerk of the county of New York on the 5th and 12th days of December, 1927.
    Proceeding under section 111 of the Real Property Law (as amd. by Laws of 1911, chap. 216), wherein the stepmother of interested parties, who is sole executrix named in unprobated will of deceased trustee, her husband, was appointed substituted trustee herein and directed to file a proper undertaking in the sum of $50,000.
    
      
      Cornelius Huth, for the appellant.
    
      Charles J. Nehrbas of counsel [Moses, Nehrbas & Tyler, attorneys], for the respondent.
   Per Curiam.

We are of the opinion that a suitable disinterested person or corporation should be made the substituted trustee. If the parties are able to agree upon such person or corporation, they may so advise the court upon the settlement of the order to be made herein, otherwise a suitable appointment will be made by the court. The order appealed from should be modified in accordance with this memorandum, and as so modified affirmed, with ten dollars costs and disbursements to the appellant.

Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.; Dowling, P. J., dissents.

Order modified in accordance with opinion, and as so modified affirmed, with ten dollars costs and disbursements to the appellant. Settle order on notice.  