
    In the Matter of the Application of Phcebe A. D. Boyle, One of the Executors of and Trustees under the Last Will and Testament of John Boyle, Deceased, for an Order Appointing a Successor to John Neuscheler, Deceased, as Executor and Trustee of the Estate of John Boyle, Deceased. In the Matter of the Application of Phcebe A. D. Boyle, One of the Executors of and Trustees under the Last Will and Testament of John Boyle, Deceased, for the Removal of Her Coexecutor and Cotrustee, John H. B. Boyle, as One of the Executors and Trustees of the Estate of John Boyle, Deceased. John H. B. Boyle, Individually and as Executor and Trustee, etc., Appellant; Phcebe A. D. Boyle, as Executrix and Trustee, etc., and Others, Respondents.
    
      (Supreme Court, Appellate Division, Second Department,
    
    
      Feb. 19, 1915.)
    Executors and Administrators—Removal of Executor and Testamentary Trustee—Jurisdiction of Surrogate—Power to Combine Proceeding to Remove Executor with One to Eill Vacancy—Power of Executor to Appoint Successor.
    Appeal from a decree of the Surrogate’s Court removing an- executor and testamentary trustee from office and appointing a successor. Evidence examined and held, that, in view of the conduct of the executor and trustee, (he was properly removed.
    The surrogate has power to entertain concurrently a proceeding to remove a surviving testamentary trustee and one to fill the resulting vacancy, especially where the petition is made iby a cotrustee.
    Where trustees are given power to appoint a successor, but fail to do so from inability to agree, the power of appointment should not be allowed to fail where the necessities of the estate require .an appointment.
    Appeal, in the first proceeding, by John H. B. Boyle, individually and as executor and trustee, etc., of John Boyle, deceased, from a decree of the Surrogate’s Court of- the county of Kings, entered in the office of said Surrogate’s Court on the 5th day of August, 1912, granting the application of Phoebe A. D. Boyle herein.
    Appeal, in the second proceeding, by John H. B. Boyle, individually and as executor and trustee, etc., of John Boyle, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 20th day of December, 1912, removing him as an executor and trustee.
    Delos McCurdy, for the appellant.
    ■ Charles Strauss (Louis B. Hasbrouck with him on the brief), for the respondent Phoebe A. D. Boyle.
    Martin B. Paris, for the respondents Elorence M. Bell and others.
    Charles Strauss (Eugene D. Boyer with him on the brief), for the respondents Hannah B. Eiger and others.
    Benjamin H. Newell, special guardian of John Boyle Bell, infant respondent.
    Joseph G. Quinn, Jr., for the respondent Henrietta Boyle Rothwell.
    John Caldwell Myers, special guardian for Dorothy Hortense Eiger and Matilda Isabelle Eiger, infants respondents.
   Pee Cubiam.-—■

The surrogate upon the facts proven was authorized to appoint Mr. Randall as executor and trustee to succeed Mr. Ueuscheler, and to remove Mr. John H. B. Boyle from such positions. (Matter of Smith, 26 N. Y. St. Repr. 237 ; Matter of Havemeyer, 3 App. Div. 519 ; Oliver v. Frisbie, 3 Dem. 22 ; Matter of Engel, 155 App. Div. 467.) Randall, like his predecessors, had the confidence of the testator, as the will shows, and it was provided that the persons appointed trustees should be incorporators. It is desirable that such persons should have active participation in the corporation, which is an agency for administering the estate. The value of the trust estate is dependent in a large degree upon the stock of the corporation, the success of which requires provident, attentive and skilful management by its directors. The corporation exists by direction of the will. The intention of Mr. Boyle to prevent or to embarrass the formation of the corporation is evident; his failure adequately to participate in its management as a director appears from his testimony; his suggestion of winding it up or selling his stock appears over his signature, and his reason is founded upon a statement which in dutiful attention to affairs he would have known to be untrue. Repeated evidences of animosity to the will, his misleading statements of the financial condition of the corporation, its credit and the purposes of the directors indicate want of knowledge and inattention of affairs calculated to be injurious to the estate. The detention of the check for $45,000 without effort to discover the propriety of issuing and paying it until menaced by these proceedings shows an abiding inertia, indifference or design to thwart or retard the administration of the trust. Whatever the motive or cause of his speech and action, or failure to act, he seems to have disqualified himself for holding the position of trust, although his usual integrity and industry in other respects indicate that he could do well if he set himself to the task. The real trouble is that he has not devoted himself painstakingly to the work according to his intelligence and opportunity. It is urged that the money of the estate to a large amount has been invested improvidently in mortgages. If that be so,'the fault of it in some degree may be due to his supineness and lack of faithful participation in th'e administration, and to'abnegation of authority. It is not enough for him to complain and accuse when he has not offered prevention by active interposition. He states that from first to last he has been advised by counsel, and that he has acted upon that advice. It is difficult to believe that counsel would lead him to be unfaithful to the testamentary-wishes of his father, the testator, or would be so inexpert in law as to advise him to shun his duties, or to be infirm in matters of administration. The surrogate had power to entertain concurrently the two proceedings, one to remove one of the two surviving trustees, and one to fill a vacancy in the trusteeship, especially upon the petition of the trustee authorized to make the appointment in case of removal of her cotrustee. The trustees were given power to appoint. If they failed from inability to agree, the power should not on that account fail if the necessities ■ of the estate required the appointment, as it did. (Rogers v. Rogers, 4 Redf. 521 ; Hill Trustees, 188 ; Bronson v. Bronson, 48 How. Pr. 481, 489 ; 1 Perry Trusts [6th ed.], § 287, p. 494 ; Cone v. Cone, 61 S. C. 512 ; Griswold v. Sackett, 21 R. I. 206.) The brief submitted for the appellant indicates an abatement of professional civility and makes unjust references to an irreproachable public officer. The prominent counsel who subscribes the brief was not in court when argument was made for the respondent, inasmuch as the case was submitted for his clients. He, therefore, could not then be apprised of the objectionable features of the brief. We believe that he has. such a high and proper sense of the proprieties of our profession that he will upon reconsideration voluntarily . withdraw these unjust aspersions. And we prefer in the first instance to leave this matter for his disposition.

■ The decree in each case should be affirmed, with costs against the appellant.

Jbiíks, P. J., Thomas, Rich and Putnam, JJ., concurred; Bubr, J., not voting.

Decree of the Surrogate’s Court of Kings county affirmed, with costs against the appellant.  