
    In the Matter of the Application of Mary E. Leavitt for the Appointment of a Trustee under the Last Will and Testament of George Bell, Deceased, in the Place of George A. Barker, Deceased, as the Last Surviving Executor and Trustee Appointed by Said Will. Edith M. Barker-Ransom and Others, Appellants; Mary E. Leavitt and Others, Respondents.
    First Department,
    December 3, 1909.
    Trust—appointment of additional trustee—jurisdiction of Supreme Court and surrogate — when additional trustee not necessary.
    Where one of two or more testamentary trustees has died or has been removed, a successor cannot be appointed under section 2818 of the Code of Civil Procedure unless the appointment is necessary in order to comply with the express ' terms of the will, or unless the Surrogate’s Court or the Supreme Court is of the opinion that the appointment is necessary to protect the cestui que trust. The cestui que trust must show that the' appointment is necessary to protect her and the trust property.
    Although a trustee appointed by the surrogate may, under certain conditions, be required to account in the Supreme Court, the converse is not true and a testamentary trustee appointed by the latter court cannot be compelled to account before the surrogate.
    Where two testamentary trustees have been appointed by the Supreme Court the surrogate should not appoint a third trustee, as it would necessitate separate accountings in the two courts, or burden the Supreme Court with an accounting by a trustee appointed by the surrogate.
    A beneficiary is not entitled to select a trustee to represent her particular interest as distinguished from the interests of remaindermen.
    The fact that one of two trustees appointed by the Supreme Court has profited as an attorney at law by charges against third persons dealing with the estate, even if ground for his removal, is no reason for the appointment of an additional trustee.
    Appeal by Edith M. Barker-Ransom and others from an order and decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 3d day of July, 1909, appointing an additional trustee of the estate of George Bell, deceased.
    
      Henry Bacon, for the appellants Young and Dunning, trustees.
    
      Rosslyn M. Cox, for the appellant Charles B. Barker.
    
      
      George P. Breckenridge, for the appellant Edith M. Barker Ransom.
    
      Arthur G. Pounds, for the respondent Leavitt.
    
      William P. Maloney, for the respondent Stringer.
   McLaughlin, J.:

George Bell died in 1881, leaving a will l)y which lie gave his residuary estate to his executors in trust to pay the' income therefrom in equal shares to his twd nephews, George A. Barker and Charles. B. Barker, and his niece, Mary E. Leavitt, the petitioner herein, during the life of his daughter, Catherine B. Bell, who was then and still is an incompetent. Upon the death of the latter without issue (she is now seventy years of age, unmarried, and confined in an asylum) the two nephews were each to receive one-tliird of the principal and. the remaining third was to be continued in trust for the benefit of, their sister, Mary E. Leavitt, and upon her death- to be divided among her issue, and in default of issue to go to her then living brother or brothers and the issue of such as should be deceased.

Four trustees were named in the will, but by reason of the death of one and the defalcation'of another, which resulted in his remo val, there were in 1905 but two trustees acting, George A. Barker, the testator’s nephew and brother of the petitioner, and Jacob Berry. In that year, in an action in the Supreme Court of this State, Berry was allowed to resign and the appellants Dunning and You tig were appointed “ substituted trustees” to serve with Barker in Berry’s place. . In January, 1907, Barker died and Dunning and Young, as trustees, thereafter commenced an action in the Supreme Court for a judicial construction of the will and a settlement of their accounts to that time. . Judgment in that action was rendered in March, 1909, and their accounts were approved and settled to the 31st day of August, 1908. The petitioner appealed only from that part of the judgment which approved of the trustees’ acts- in making certain investments and reinvestments and discharging them from any further accounting or liability in regard to the same, except to account for the principal thus invested and the income arising therefrom subsequent to the 31st day of August, 1908. Before the judgment was entered from which the appeal was taken she instituted this proceeding in the Surrogate’s Court to have an additional trustee appointed in place of Barker, deceased. The grounds upon which she based her application for the appointment of an additional trustee, as set forth in her petition, were that'three trustees were preferable to two, and that as she would be the only beneficiary of any trust after the death of Catherine Bell, she desired to have a trustee who would represent her interests; she requested the appointment of one Beattys, who had been counsel for her in the action for the accounting in the Supreme Court. A decree was entered in the Surrogate’s Court appointing Beattys, from which this appeal is taken.

.The appellants contend that the Surrogate’s Court had no jurisdiction to make the decree appealed from since the Supreme Court had assumed jurisdiction over the trust estate. In answer to this contention the respondents urge that after the judgment in 1905 in the action in the Supreme Court, by which the two trustees were appointed in place of Berry, the Supreme Court and the Surrogate’s Court had concurrent jurisdiction.

The conclusion at which I have arrived renders it unnecessary to determine which contention is correct. The authority to make the appointment at all is contained jn section 2818 of the Code of Civil Procedure. That section provides that where one of two or more testamentary trustees dies or becomes a lunatic or is .by decree of the Surrogate’s Court removed or allowed to resign, a successor shall not be appointed except where such appointment is necessary in order to comply with the express terms of the will, or unless the same court or the Supreme Court shall be of the opinion that the appointment of a successor would be for the benefit of the cestui que trust. To justify the appointment in this case, therefore, the court must be satisfied that such an appointment would be for the benefit of the cestuis que trust, and there is not a single fact set out in this record, so far as I have been able to discover, which establishes either directly or inferentially, that the appointment of Beattys is at all necessary for the protection of the trust property, for the proper administration of the trust,, or for the protection of the cestuis que trust. Mot only this, but the appointment of Beattys would necessarily lead to increased expense by way of commissions,. and might lead to confusion in the administration of the estate and the settlement of the trustees’ accounts. The trustees appointed by the Supreme Court are accountable to it and to it alone, and it does not follow, as urged by the respondents, that because a trustee ■ appointed by a decree of the Surrogate’s Court may, under certain

conditions, be'required to account, in the Supreme Court, the converse is true and the Surrogate’s Court — which has only statutory •jurisdiction (Matter of Bolton, 159 N. Y. 129) — can compel a trustee appointed by the Supreme Court to account. The only authority cited in support of this proposition, or which I have been able to find, is Matter of Pitcher (4 N. Y. Mo. Law Bull. 32). On the other hand, it was held in Matter of Hazard (51 Hun, 201)-that under the Code of Civil Procedure the Surrogate’s Court ha"d no jurisdiction to compel the administrator of a deceased trustee appointed by the Supreme Court to account! In the latter case it w;as said: “ The' Supreme Court certainly has the power to direct and control the conduct of trustees appointed by it, and if the Surrogate’s Court has acquired the jurisdiction now claimed for it, we have two separate and distinct tribunals who are authorized to direct and control the conduct in the administration of his trust of the same trustee, a condition of affairs which never could have béen intended by this Code. Such a construction would lead to endless confusion, and trustees could never know upon which authority to rely.” ' '

If this ■ decree be affirmed, then we have this situation the administration of the trust estate will be in the hands of three trustees, two of whom are accountable to the Supreme Court and the other, primarily, in the Surrogate’s Court, which would necessitate separate accountings in the two courts, for the Supreme Court will not ordinarily take an account of an .administrator or trustee appointed by the Surrogate’s Court. (Borrowe v. Corbin, 31 App. Div. 172.; affd. on opinion below, 165 N. Y. 634; Bushe v. Wright, 118 App. Div. 320; Matter of Smith, 120 id. 199.) If it be claimed that under such circumstances the Supreme Court should take, and state the account of all three trustees, then the duty will be foisted upon it of taking the account of a trustee whose appointment it did not make, when the administration of the trust estate - was. already ■ in the hands of trustees whom it did appoint. If the Surrogate’s Court, therefore, had the power under the circumstances to appoint an additional trustee, it ought not to have exercised it, hut on the contrary remitted the petitioner to the Supreme Court.

Nor is there any force in the contention of the petitioner that she is entitled to have a trustee to represent her particular interest. She is no more entitled to select a trustee than are the other persons interested in the estate. The two trustees appointed by the Supreme Court, so far as appears, are properly administering the estate and in so doing are looking after and caring for the petitioner’s interest. The fact is not disputed that since they have assumed the management of the estate both the principal and income have been increased and on the settlement of their accounts it was found that they had “fully and faithfully discharged their duties as such trustees.” The fact that one of the trustees, through the law firm of which lie is a member, has profited to some extent by charges' made against third persons dealing with the estate does not militate against or destroy this finding. Nor do I consider it at all material on the question presented by the appeal. If the acts of the trustee referred to be subject to the criticism made, that would be a propér matter for consideration if an application were made to remove him on that ground, but it furnishes no reason whatever why there should be an additional trustee, and especially so since it is not claimed that by reason of the charges referred to the trust estate has been in any way injured, or that the interest of any person interested therein has suffered thereby.

The decree appealed from, therefore, should be reversed, with ten dollars costs and disbursements to each appellant who appeared and filed separate brief, and the petition dismissed.

Ingraham, Laughlin, Houghton and Scott, JJ., concurred.

Decree reversed, with ten dollars costs and disbursements to each appellant who appeared and filed separate brief, and petition dismissed.  