
    
      N. Y. COMMON PLEAS.
    In the Matter of the Application of Lorretta Howell, for the appointment of a trustee to succeed Elisha Brooks, deceased.
    
      Trusts—fvhat trusts descend to the legal representatives on the death of a trustee,
    
    A trust fund, consisting of personal property, upon the death of a trustee descends to and the title vests in his legal representatives,
    The provisions of the statute {B. 8,, part 2, title 2, chap. 1, sec. 68) giving the title to a trustee to he appointed by the court, apply fo trusts in real estate only.
    
      Special Term, June, 1881.
    
    
      John A. Bryan, for petitioner.
    
      Henry A. Root, for administrator.
   Larremore, J.

The facts alleged in the petition were referred for proof, which has been made and reported to the court. It thereby appears that there came into the hands of Elisha Brooks, the deceased trustee, a trust fund amounting to $12,027.05, against which no offset or reduction exists in his favor.

James Raymond, administrator with the will annexed of Elisha Brooks, deceased, appeared and was heard upon the proceedings thus had, and now appears by counsel in opposition to an application for the appointment of a new trustee and the payment of such trust fund to him.

It is conceded that the fund in dispute is personal property, „and the .question is whether such trust estate descended to the legal representatives of Brooks, or by operation of law vested in the supreme court (Revised Statutes, part 2, title 2, chap. 1, sec. 68). The authorities are conflicting upon this point. In Hawley agt. Ross (7 Paige, 103) the chancellor held that the Statute of Uses and Trusts was applicable in this respect to both real and personal property. This ruling was followed in Curtis agt. Smith (60 Barb., 9), and there are several dicta to be found in the cases that appear to confirm this view. But the court of appeals, in Bucklin agt. Bucklin (1 Abb. Ct. Appeals Dec., 242), and again in Emerson agt. Bleakley, (5 Abb. Pr. [N. S.], 350) maintained the opposite theory that the provisions of the statute as to the vesting of trusts, upon the death of a trustee, relate exclusively to real estate (See, also, Burn agt. Vaughan, 5 Abb. Pr. [N. S.] 269; Banks agt. Wilkes, 3 Sand. Ch., 99; Matter of North Shore Staten Island Ferry Co., 63 Barb., 556; Gilman agt. Reddington, 24 N. Y., 13). The weight of authority must therefore control.

The trust fund has been sufficiently identified for the purposes of this application (see Hooley agt. Gieve, 9 Abb. New Cases), and the petitioner should not be put to her action where there is no dispute, as to the facts or her rights in the premises.

Decree ordered in favor of petitioner.  