
    Mary M. Stout, Resp’t, v. Hiram W. Betts, Individually and as Trustee of Hiram Betts, Deceased, et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    Party—Trustee.
    An appeal from an order, removing a testamentary trustee, does not prevent the devolution of the trust property upon his successor, and such successor is a proper person to he substituted as a party for the purpose of protecting the trust.
    Appeal from an order substituting Lewis Boughton as plaintiff.
    
      L. B. Treadwell, for app’lts ; Thornall, Squires & Pierce (Franklin Pierce, of counsel), for resp’t.
   Mayham, P. J.

The case shows that the appellant was named in the will of Hiram Betts as executor and trustee, and on the probate of such will he qualified and entered upon the duties of his trust. That, on being cited by respondent to account be-' fore the surrogate of Cortland county, he voluntarily rendered his account; and, on such accounting, the surrogate found, and by his decree adjudged, that the appellant had in his bauds, as trustee, the sum of $2,159.62 belonging to the respondent as cestüi que trust, pursuant to the terms of said will, and that he had improvidently managed the trust committed to his charge, and that he was unfit for the due execution of the trust and that there was reason to believe that his financial condition hazarded the existence of the trust.

The surrogate also in his decree removed the appellant as testamentary trustee from his trust; and' in the same decree appointed Lewis Boughton as trustee, with all the rights and duties with reference to said trust fund conferred upon the appellant under and in pursuance to the terms of such will and the letters testamentary issued to him thereon. This decree was made and entered in surrogate’s court on the 13th day of December, 1892, and a copy served on Betts, the appellant, on the 14th of the same month. ■ On the 13th of January, 1893, Betts, by his attorney, served on the attorney for the respondent herein a notice of appeal, in which he gives notice “ That Hiram W. Betts, the acting executor and trustee, hereby appeals,” etc.; this notice is signed “L. B. Treadwell, Att’y for Hiram W. Betts, Executor, etc.” Ho copy of an undertaking on appeal was served with the notice, and no undertaking thereon was filed in the surrogate’s office of Cortland county until the 16th day of June, 1893.

On the 14th day of January the notice of appeal served by the appellant was returned to his attorney on the ground that no undertaking was filed, and the notice of app'eal was a nullity. Ho leave of the court to file.an undertaking on the 16th of June seems to have been obtained. The appeal on this motion is taken in the name of Hiram W. Betts individually, and is addressed to the attorney for the plaintiff, and not served upon the trustee and administrator, with the will annexed, on whose petition the substitution was made.

This substitution is claimed to have been made under the provisions of § 756 of the Code of Civil Procedure on'the theory that by the decree of the surrogate a devolution of liability was cast upon Lewis Boughton by his appointment as trustee in the place of Hiram W.- Betts, removed, who was prosecuted originally in this action, and has been removed. That section provides that: “ In case of a transfer of interest or a devolution of liability the action may be continued by or against the original party unless the court directed the person to whom the interest is transferred, or upon whom the liability is devolved, to be substituted in the action, or joined with the original party, as the case may require.”

But it is insisted by the respondent that the appeal in this matter suspended the operation of the surrogate’s decree, and that proceedings under it stayed all action on the part of Boughton, who was appointed successor of Hiram W. Betts, and in support of that contention, the court is referred to §§ 2576 and 2578 of the Code of Civil Procedure. But we think that an examination of those sections will show that they do not relate to decrees removing testamentary trustees or executors. By § 2583 of the Code it is provided that, “ An appeal from a decree revoking the probate of a will or revoking letters testamentary, letters of administration or letters of guardianship, or from a decree or order suspending an executor, administrator or guardian, or removing or suspending a testamentary trustee * * * does not stay execution of the decree or order appealed from.” The language of this section seems to embrace an appeal from a decree, like the one from which this appeal is taken. If wo are right in this conclusion, then this appeal, even if regular, did not prevent the devolution of this trust property upon the successor of the deposed trustee, and Boughton, as such successor, would seem to be a proper person to be substituted as the defendant for the purpose of protecting the trust fund, either as against the plaintiff in the action or his insolvent predecessor.

We are, therefore, of opinion that the order of substitution was correct and should be affirmed.

Order affirmed, with ten dollars costs and printing disbursements.

All concur.  