
    
      Ex Parte, Adam Tunno.
    When the Court of Equity assumes the management of a trust, it is for the benefit of the cesluy que trust, and not to lock up the trust fund, so that he cannot have the benefit of it; and the Court will even permit the trust, and the trust fund, to be transferred to another State, if it be to the advantage of the cestuy que trust to do so. And so, where a trustee appointed by the Court, and to whom the trust funds had been paid by order of the Court, applied by petition, stating that his cestuys que trust were free persons of color, who resided without the limits of the State, and were prohibited by law from coming within it; that they were desirous that the trust fund should be transferred to their place of residence, and placed in the hands of a trustee residing at the same place, and that it would be to their advantage to do so; wherefore the petitioner prayed, that he might be discharged of his trust, and that another trustee, who resided at the same place with the cestuys que trust, might be substituted: held, that, if the facts stated in the petition were true, the prayer thereof ought to be granted, and therefore an inquiry should be had; but that all persons interested in the trust ought in some way tó be made parties.
    Before Johnston, Chancellor, at Charleston, January, 1831.
    This was a petition by a trustee to be permitted to surrender his trust to a substitute.
    The petition stated, that in November, 1823, on the petition of Martha Patience Morton, a free woman of color, the widow of Joseph Morton, deceased, and of Patience M’Kenzie Marshall, one of the grand children of the said Joseph Morton, a decretal order of this Court was made, whereby certain real estate was directed to be sold by the master, and the proceeds paid over to the present petitioner, Adam Tunno, who was appointed trustee for the parties, intitled, to the same, under the will of the said Joseph Morton; and that, in pursuance of the said order, the said real estate was sold, and the proceeds thereof, amounting to the sum of $2,200, paid over to the said trustee, who invested the same in stock of the Bank of the United States : That the trusts of the said fund were to the use of the said Martha Patience Morton, for life; and, after her death, to the use of the said Patience M’Kenzie Marshall, and one Joseph Morton, for life, with remainder to their children, respectively ; but if either of them should die leaving no children, then to the use of the survivor, for life, with remainder to his or her children : That the petitioner, as trustee, had regularly paid the interest and dividends of the fund in his hands to the said Martha ^at*ence Morton, during her life, but that she had recently died, leaving the said Patience M’Kenzie Marshall surviving her; that the other cestuy que trust for life, Joseph Morton, had gone to sea a great many years since, and had never been heard of, and was supposed to be dead ; and that he had left no children, so that the said Patience M’Kenzie Marshall, and her children, were now in-titled to the whole of the said trust fund.
    The petition further stated, that the said Patience M’Kenzie Marshall, and her children, all of whom were minors, resided at Philadelphia, in the State of Pennsylvania ; and that, being persons of color, and prohibited by law from coming into this State, they were desirous that the trust fund, should be transferred to the place of their residence, and placed in the hands of a trustee residing in the same place : and the petitioner believed that it would be greatly to their advantage to do so, as the expence of transmitting the dividends, and the inconvenience, and delay, attending it, occasioned a loss, which was considerable where the fund was so small. That the'said Patience M’Kenzie Marshall had, in consequence thereof, and with the assent of the petitioner, applied to, Isaac Norris, Esquire, a gentleman of great respectability residing in Philadelphia, to undertake the trust; and that he had consented to do so ; which consent had been given by deed duly executed by both the said Isáac Norris, and Patience M’Kenzie Marshall.
    Wherefore the petitioner prayed, that the said Isaac Norris might be appointed trustee in lieu of the petitioner; that the petitioner might be authorized to transfer the trust fund to the said Isaac Norris ; and that the petitioner’s account of his management of the trus.t might he examined, and he thereupon discharged.
    The petition was read, and a motion made that the same be referred to the master, to inquire into the facts staled therein, and t<r report upon the propriety of granting the prayer thereof. The motion was refused by the Chancellor, on the ground, that the Court could not authorize the removal of trust funds beyond its jurisdiction ; and that it was useless therefore to order a reference.
    The petitioner appealed, and now moved to reverse the decision of the Chancellor.
    Toojoír, for the motion.
   O’Neall, J.,

delivered the opinion of the Court.

In this case we are of opinion, that if the facts stated in the petition be true, the prayer of the petition ought to be granted; and therefore, that the motion for a reference ought not to have been rejected. The petitioner was appointed a trustee by this Court, and not by the parties; and he was, therefore, the officer of the Court, for the management of the trust, which the Court had undertaken to manage. When the Court of Equity assumos the management of a trust, it is for the benefit of the cestuy que trust, and not to lock up the trust fund, so that he can never have the benefit of it. According to the statement made in the petition, the cestuys que trust are perpetually exiled from South Carolina, and can never enjoy the trust here. The inquiry would then necessarily be, whether it is most to the advantage of all concerned, that it should be transferred to their residence in Philadelphia. If it is, then the Court should pursue that course. The only difficulty is in the fact, that the cestuys que trust in remainder are minors, and not parties. It would, perhaps, be well, before a final order is made, that they should, in some shape, be made parties to this proceeding. It is therefore ordered, and decreed, that the order rejecting the petition be reversed, and that the petition be remanded to the Circuit Court for examination and trial.

Johnson, J., and Harper, J., concurred.

Order reversed.  