
    
      In the matter of the petition of Abraham Van Wyck.
    
    N. Cole, for petitioner.
    Power of court to discharge executors and trustees.
   This was an application by one of three executors to be discharged from his trust and to leave the trust to be discharged by the other executors. The chancellor held that independent of any statutory provisions on the subject, the court has no power, upon mere petition, to discharge any trustee, or to accept his resignation and appoint another in his place, without the consent of all persons who are, or who upon any future contingency may be, interested in the execution of the trust. That the usual course of proceeding for the purpose of changing a trustee is upon a bill, to which all parties interested are either actually or constructively Kiade parties.

That although the revised statutes have authorized the court, upan potition, to accept the resignation of a trustee, and to discharge him from his trust in certain casgs, it is at least doubtful whether this provision extends to the case of an executor, so far as relates to his power to sue for and collect debts due to the testator, or as relates to his liability to creditors, legatees, and next of kin on account of the personal estate which may have come to his hands.

When one several tras-tees will not be withoutsubsli-inhif

And foe chancellor was of the opinion that the discharge ... r ° of the petitioner, without appointing a new trustee in his place, would render it doubtful whether the remaining executors execute the power in (rust to sell the testator’s real estate, so as to give a good title to purchasers; inasmuch as

none of the provisions of the revised statutes respecting executors or trustees authorize a part of the executors to whom a joint power is given, to execute the same, so as to transfer a good title to the purchaser, where one of those to whom such joint power was given has been discharged from his trust by this court after he had accepted the trust, and duly qualified as executor.

That if the person creating the trust has not authorized it to be executed by a part of the trustees, the court must appoint a new trustee in the place of the one who has resigned or been removed, to join with the others in the execution of the trust to power in trust, in order to give a valid title to a purchaser.

Petition denied.  