
    Marie S. Wiggins, Plaintiff, v. George M. Burr, as Trustee, et al., Defendants.
    (Supreme Court, New York Special Term,
    April, 1907.)
    Trusts — The trustee, appointment, qualification, resignation and removal — Removal of trustee — Grounds.
    The power to remove a testamentary trustee should be exercised sparingly and only where there is a clear necessity for interference to save the trust property.
    Where no want of integrity or capacity on the part of the trustee appears, and the security of the property is not in danger, and the remaindermen, whose interest is greater than the life tenant’s, do not object to the conduct of the trustee, and one of the remaindermen, having a one-third interest in the fund, subject to the estate of the life tenant, is the wife of the trustee; and where the trustee has acted in good faith and generally observed excellent care and sound discretion, and the estate has sufiered no loss from his investments during the ten-year period of his trusteeship, he will not be removed at the suit of the life tenant, though his delay in converting certain securities into cash might invite criticism.
    
      Action for the removal of a trustee.
    Weill & Weill, for the plaintiff.
    Willard & Stewart, for the defendant.
   O’Gorman, J.

This is an action brought by a life beneficiary for the removal of the trustee of a fund of $101,-559.24. The omissions properly chargeable against the trustee are not of sufficient gravity to warrant his removal. The testimony does not establish want of integrity or capacity, and the security of the property is not endangered. The plaintiff is now fifty-eight years of age, and the remainder-men, whose interest is far more substantial than the life tenant’s, offer no objection to the conduct of the trustee. The wife of the defendant is one of the remaindermen, and has a one-third interest in the fund subject only to the plaintiff’s life estate. In investing the moneys of the estate the defendant has acted in good faith, and has generally observed excellent care and sound discretion. The estate has suffered no loss from any one of the numerous loans made during the ten-year period of his trusteeship. The charge of improper disbursements is not sustained. Payments of income under the provisions of the will are to be made to the plaintiff upon her personal receipt only, and much of the misunderstanding between the parties appears to be due to the plaintiff’s disregard of this provision. The defendant’s delay in converting certain securities into cash may invite criticism, but it is not every mistake or neglect of duty which will induce a court to remove a trustee. The power of removal must be exercised sparingly. There must be a clear necessity for interference to save the trust property. Elias v. Schweyer, 13 App. Div. 336. No such necessity exists. Complaint dismissed, with costs.

Complaint dismissed, with costs.  