
    CASE 55. — 'PROCEEDINGS FOR THE APPOINTMENT OF A TESTAMENTARY TRUSTEE- OF THE ESTATE OF W. C. HITE, DECEASED.
    April 29, 1909.
    Hite v. Hite’s Ex’or.
    Appeal from Jeffers'on Circuit Court (Chancery Brianieli, First Division.)
    Samuel B. Kirby, Judge.
    From an order appointing John W. Barr as trustee, Louis Hite, a devisee, appeals.
    Affirmed.
    1. Wills — Estates in Trust — Appointment of Trustees — Power of Court. — Testator devised his estate to three trustees, ¡and provided that there should always be two trustees, and that an appointee under an appointment made with the consent of ■all the adult devises should not be required to give bond, and that, where an appointment was made without such consent, the trustee should execute a bond. One trustee resigned and one died. All the adult devises, except one and his daughter, requested the appointment of a son of one of the original trustees. He was fitted for the trust, and would give the matter his personal attention. Held, that the court properly appointed him trustee as against the objection that a trust company should have been appointed.
    2. Trusts — Trustees—Bonds—Liability of Sureties. — A bond of one appointed testamentary trustee conditioned as required in the will on Ms faithfully discharging the duties, without specifying any amount, is a common-law obligation, and the sureties are responsible for all moneys of the estate coming into the hands of the trustee notwithstanding the act of 1908 (Acts 1908, p. 125, c. 49), providing that the bond of a fiduciary shall be in a penal sum, and that the surety shall not be liable beyond such sum.
    JOHNSON & HIEATT for appellant.
    HUMPHREY, DAVIE & HUMPHREY for appellee.
   Opinion oe the Court by

Judge Hobson

Affirming.

Many years ago W. C. Hite died county, tFe owner of a large estate. in Jefferson By his will lie devised Ms estate in trust,, 'the- income to be paid to certain persons for life, and 'to others in remainder. He appointed as trustees Thomas L. Barrett, William W. Hite, 'and Judge John W. Biarr. A'll three quialified. He left a widow and five children.- The widow and the oldest son, W. W. Hite, have since died. Judge Biarr resigned the trust iaad Allen EHite Was appointed in Ms stead.' Thomas L. Barrett died. When W. W. Hite died, Allen E. Hite was the only surviving trustee. The will provided that it was the desire of the testator that, there should be always two trustees. It -also provided that, if an appointment was made by the written consent of -all the devisees ever 21 years of age, the trustee so ap • pointed should not be required to give bond; but, if the appomtment was made without such consent, then he requested the court ‘to reqtere the trustee to execute ‘-‘bond with good security for the faithful discharge of his duties.” All the'-adult devisees, except Louis Hite )a-nd his -daughter, Luci-le Hite, requested the court to appoint John W. Barr 'as trustee, -and to allow him to qualify without bond. Louis Hite opposed the app-otetment, insisting that a trust -company should be appointed trustee- The court appointed John W. Barr, who executed a -bond conditioned as provided in the will; with security worth double the ‘amount of the estate; and, under 'an agreement between Barr and the Fidelity Trust Company of wMch he is the president, it was ordered by the 'court that he should appotet the Fidelity Trust Company as Ms -agent to manage the trust, 'the trust Company in 'consideration of receiving the compensation that would go to Barr guaranteeing Ms fidelity in the management- of the estate. From this order Louis Hi'te tas appealed, insisting thialt the court erred in not appointing as trustee a trust company on the ground that k trust company is better qualified to mianage such 'an estate; that it never dies; that it is always accessible; that it can give bond with less trouble than an individual; and 'that so large a bond would be required of the trustee that it would be very burdensome for an individual to give it, and difficult for the court to protect the estate by keeping the bond good. He aliso insists that the bond executed by Barr as trustee does not conform to 'the statute and is not sufficient.

We do not see that the circuit court abused a sound discretion in the mlatter. All the adult devisees, except Louis Hite and his daughter, requested the court to appoint Mr. Barr. Among other things, they wished him to- be trustee for the reason that his father was one of the original trustees, and on account of the fact that they feltt assured that he would give the matter his personal attention, and for other reasons that need not here be elaborated. He is a mjan eminently fitted for such a trust, and no objection is made here to him on thaifc score. The court is not required to appoint a trust company as trustee, and especially is this true where a majority of the persons interested desire an individual appointed; or when from the nature of the case the appointment of the person selected will be likely to lead to & management -of the estate that will be satisfactory to -those interested-. It seernis to us from the record that the court made an ideal selection, and that no interest of the appellant's was prejudiced. The act of 1908 (Acts 1908, p. 125 c. 49) requires that the bond of a fiduciary shall be in a penal sum, and that the surety shall not be liable beyond'the sum s'o specified. This -act was passed manifestly for the benefit of sureties in sudh bonds, and to protect them from the liability which bald been imposed upon them in some cases trader the previous statute under which they had been held liable without regard to the ¡amount specified in the bond. The bond here -specifying’ no amount, the sureties of the trustee ¡are responsible for the faithful discharge of his duties by him and for all moneys coming to his hands belonging to the estate. The bond conf orms to the provision 'of the will. The absence 'of an .amount to limit the liability of the sureties can hurt nobody but the sureties, and they are bound upon the bond as a common-law obligation. The proof filed before the chancellor shows that the bonld is amply sufficient. If at any time it should develop that the bond is not sufficient, the trustee may be required to give an additional bond in the circuit court.

Judgment .affirmed.  