
    
      In re Seymour’s Estate.
    
      (Supreme Court, General Term, First Department.
    
    December 31, 1891.)
    1. Removal of Testamentary Trustee—Investments Outside the State.
    A will appointed petitioner trustee of an estate which was given to C. for life, and on his death to his appointees. C. by his will appointed defendant trustee of the estate, giving it to petitioner for life, and on his death to his appointees, or, failing such appointment, to petitioner’s lawful issue. On the death of C. defendant took possession of the trust-estate, petitioner himself having previously invested it in another state, and continued it as originally invested for upwards of 20 years, when it was changed by enlarging the security. Such investment was greatly to petitioner’s advantage, and netted him a large and regular income free from taxation, and was amply secured. Meld, that defendant should not be removed as trustee on application of petitioner and his children because of his failure to reduce the estate to cash, and bring it into the state for investment, without a demand for the change of investment, it appearing that he acted in good faith for the benefit of the trust; that he was of good financial standing, and had taken immediate steps on the filing of the petition to comply with the law.
    2. Same.
    Under Code Civil Proc. § 2817, subd. 2, providing for the removal of a testamentary trustee “where, by reason of his having * * * invested money in securities unauthorized by law, * * * he is unfit for the due execution of his trust, ” a trustee will not be removed for an investment in unauthorized securities unless the investment is such as to endanger the trust property, or to show a want of honesty, proper capacity, or reasonable fidelity. Éstate of Morgan, 8 Civil Proc. R. 158, followed.
    Appeal from surrogate’s court, Hew York county.
    Petition by Warren B. Sage and others for the removal of Charles E. O’Hara as testamentary trustee under the will of Melancthon L. Seymour, deceased. Petitioners appeal from a decree denying their petition.
    Affirmed.
    Argued before Van Brunt, P. J., and Barrett and Ingraham, JJ.
    
      Kidder & Meleher, {John S. Meleher, of counsel,) for appellants. Warren G. Brown and A. B. Tappen, for respondent.
   Barrett, J.

One Melancthon L. Seymour by his will appointed the respondent, Mr. O’Hara, his executor and trustee. The trust-estate was to be enjoyed by Mr. Warren B. Sage for life, and upon his death was to go to his (Sage’s) appointees. In case of Mr. Sage’s failure to appoint, the principal of the trust-estate was then to go to Mr. Sage’s lawful issue. Previous to Seymour’s death Mr. Sage was himself executor and trustee under the will of Patience W. Seymour, who gave this same estate to Melancthon L. Seymour for life, and upon his death to his (Melancthon’s) appointees. Sage invested the estate in Connecticut, and in 1886, upon the death of Melancthon, he turned it over to Mr. O’Hara, who has held it ever since. It is now sought to remove O’Hara, in substance because he did not reduce the Connecticut investment, which thus fell into his hands, into cash, and then bring the cash into this state for investment in lawful securities. There are also some other charges, but none of any great moment, and they are substantially to the main charge.

The answer to the main charge is that O’Hara simply continued the Connecticut investment as it came to him from Sage, and that he did so with Sage’s full knowledge and approval. Sage’s denial of such approval is unworthy of serious consideration. He has received the income for upwards of 20 years, and he knew perfectly well where it came from. And why, it may be added, should he have objected to this investment? It was, in fact, an excellent one, and it was producing with unfailing regularity an income of from 5 to 7 per cent, upon the principal sum. It was also an investment of his own choosing, a trust legacy to O’Hara from Sage himself as Patience Seymour’s executor and trustee. For some 20 years this investment was unchanged, but in 1886 the old mortgage was paid off, and a new mortgage was given upon the same property, which was then greatly improved and enhanced in value. The present security is in fact about twice as valuable as the original. In his answer to the petition O’Hara further states that he was ready to invest the remainder of the trust fund not covered by the mortgage in compliance with the directions of the surrogate. The investment was greatly to Sage’s advantage, not alone because of the large income realized therefrom, but because such income was not diminished by local taxation. Clearly, Mr. Sage cannot now'be heard to complain of this investment. If he has altered his mind about it, and wishes a strictly legal investment, he should at least have asked the trustee to make the change before proceeding in this summary way. His present position is entirely untenable, for he not only approved of this investment throughout, but as late as the 25th of September, 1890, approved in writing of the trustee’s account, based, of course, upon such investment; He has received an excellent income during all these years, and now, without a word of warning, he attacks Mr. O’Hara for retaining the investment which produced that income,—an investment, too, which originated with himself, and which has been greatly strengthened since its adoption by O’Hara. It thus appears that the breach of trust has here been purely technical. The trustee has acted in good faith, and the estate has.never been in the least jeopardy. The moment complaint was made-O’Hara arranged to bring into this state nearly the entire fund, reduced to cash, while the rest of it is amply secured, and will follow shortly, namely, in November of next year.

The position of Mr. Sage’s children upon this application is, of course, different from that of their father, but even they have made out no case for removal. They have but a contingent interest in the estate; that is, they take only in case their father fails to exercise his power of appointment. But they undoubtedly have a right to demand that the estate shall be invested in authorized securities. It does not follow, however, that because, as against these contingent remainder-men, there has been a technical breach of trust, the trustee is necessarily to be removed. The rule is well stated by Mr. Ferry in his work on Trusts, (section 276:) “Nor will a trustee be removed for every violation of duty, or even breach of the trust, if the fund is in no danger of being lost. The power of removal of trustees appointed by deed or will ought to be exercised sparingly by the courts. There must be a clear necessity for interference to save the trust property. Mere error, or even breach of trust, may not be sufficient; there must be such misconduct as to show want of capacity or of fidelity, putting the trust in jeopardy. ”

It is plain that here there has been no such misconduct as the learned author points out. There has been no lack of capacity or fidelity, and the trust has never been in jeopardy. If these contingent remainder-men had requested a change of securities, it would have been Mr. O’Hara’s duty to comply with their request. Had he refused, their request could have been enforced, and meanwhile Mr. O’Hara would have been chargeable with all loss caused by the unauthorized investment. He might even have been removed, especially if his refusal were willful or in bad faith. But we think these applicants, under all the circumstances, owed it to the trustee to confer with him, to make their complaints and express their wishes, before taking so radical a step as is involved in an application for removal. Mr. O’Hara’s solvency is not questioned, nor is his character. And he states under oath that his financial standing and responsibility are more than sufficient to meet any demand by reason of the premises. The contingent remainder-men have not lost a dollar by reason of the unauthorized investment, nor is there any need of apprehension on that head. Indeed, Mr. O’Hara has not only brought the bulk of the estate into this jurisdiction, but he has filed his account, and asked for a judicial settlement thereof. In fact, he has done everything which an honest and capable man could do to rectify a condition of things which he had every reason to believe was satisfactory to his cestuis que trustent the moment he was informed that it was objected to. The petitioners have proceeded upon the theory that every investment which the court cannot sanction, or which may subject the trustee to personal liability in case of loss, necessarily draws with it the penalty of removal. In this, we think, they ai-e mistaken. It "is also claimed that the investment of money in securities unauthorized by law of itself calls for the removal of a trustee under subdivision 2 of section 2817 of the Code of Civil Procedure. But the language of this subdivision is: “Where, by reason of his having * * * invested money in securities unauthorized by law, * * * he is unfit for the due execution of his trust. ” We agree with Surrogate Rollins, in Estate of Morgan, 8 Civil Proc. R. 158, that the last expression must be regarded as a legislative sanction of a familiar doctrine of equity jurisprudence, which is expressed by Judge Story (2 Eq. Jur. § 1289) in these words: “It is not every mistake or neglect of duty or inaccuracy of account which will induce courts of equity to remove a trustee.” The acts or omission must be such as to endanger the trust property, or to show a .want of honesty, or of proper capacity, or of reasonable fidelity.” None of these derelictions have here been established, and we think, therefore, that the learned surrogate was right in denying the application. The costs were properly charged upon the petitioners. Their application was precipitate and ill-timed. It was certainly lacking in just consideration to a trustee who seems to have served their father faithfully for a great many years; and it was probably quite unnecessary, for doubtless a simple suggestion would have sufficed to bring about the desired change of securities. The decree of the surrogate should be affirmed, with costs. All concur.  