
    
      Ex Parte, Sarah Knust.
    A conveyance in trust cannot operate as a security to the trustee in derogation of the trusts declared; and although the trustee’s having become surety for the grantor in an administration bond, is stated in the trust deed as the consideration of the grant, the consideration enures to the benefit of the cestuy que trust, only.
    Where a trust is vacant, a trustee may be appointed on petition: and although a trustee will not he removed, for misconduct, otherwise than upon bill filed, yet a trust must be regarded as in some degree a personal confidence, and the Court will more readily transfer it, where it has devolved upon a stranger to the cestuy que trust; and the rule is less stringent therefore, where the application is to appoint a trustee in lieu of the executor of the original trustee. At least it is too late, in the Court of Appeals, to object to the proceeding in such a case having been by petition; nor will that Court interfere with the discretion of the Chancellor in the appointment of a trustee.
    This was a petition for the appointment of a trustee, and was heard at Charleston, in January, 1830, by De Saussure, Chancellor, from whose decree the questions made will be sufficiently understood.
    De Saussure, Ch. This case arises upon the petition of Mrs. Sarah Knust, which prays, that she may be appointed trustee, under a deed which is set forth in the petition, by which she, some years since, conveyed certain slaves, and other personal estate to John C. Jones, and William Wadsworth, in trust for her son, Henry George Knust, to b.e delivered to him on his attaining the age of twenty-one years. The trustees appointed by the deed are both dead, and the cestuy que trust is still a minor. The petitioner has been appointed his guardian, and has given bond, with security, for the faithful discharge of her trust.
    The application is resisted by the respondent, Mrs. Catherine Jones, widow, and executrix of the trustee, John C. Jones, who was the survivor of his co-trustee, William Wadsworth. It seems, that the property comprehended hi the trust deed constituted a part of the estate of the petitioner’s husband, Henry Knust, who died intestate, leaving the cestuy que trust, Henry George Knust, his only child; that his widow, the petitioner, administered on his estate, and the trustees, Jones, and Wadsworth, became the sureties to her administration bond; and that she subsequently executed the trust deed, conveying to them her share of the estate, in trust for her son. The recital of the deed states the fact, that the trustees had become the sureties of the grantor, on her administration bond; but the trusts declared are all for the benefit of the son. It is insisted, however, that it was intended as-a security to the trustees against their liability on the administration bond; and the ground, on which the present application is resisted, is, that the respondent, on whom the trust has devolved, as executrix of the surviving trustee, is intitled to retain the trust property, to indemnify the estate of her testator against that liability, until the administration bond is cancelled. And, as a reason for retaining this security, it is alleged, that the cestwy que trust is illegitimate, having been bom before the marriage of his parents; and that there are next of kin of the intestate, intitled in law to a moiety of the estate, for which the petitioner would be liable to them, as administratrix, and her liability attach upon the sureties to her administration bond.
    The point in controversy was argued very fully; but it does not appear to me difficult of decision. Prima facie, the mother is best intitled to the confidence of the Court, and to the appointment as trustee. Against this there is nothing but an allegation, that the cestwy que trust is not the legitimate son of the intestate, Henry Knust, and therefore not intitled to that portion of the estate, which the administratrix has retained for his use, but for which, it is insisted, she is still liable, as administratrix, to the next of kin. Of this allegation, however, there was no proof, and the Court cannot presume it. Nor is the inquiry very material. A decree on this petition could not affect the rights of the next of kin, if they should even think fit to set up a claim; nor will the appointment of the petitioner as trustee debar the respondent from any measures to be relieved from the administration bond. Neither can the security be said to be diminished, for the property in the mean time will be protected by the guardianship bond; and if the security to the guardianship bond is thought not to be sufficient, application may be made to enlarge it. It is ordered, and decreed, that Mrs. Sarah Knust be appointed trustee under the deed in question.
    The respondent appealed from this decree, and moved that it be reversed, on the following grounds: 1. That his Honor was mistaken in supjiosing the illegitimacy of the cesiuy que trust to rest upon presumption; it being an admitted fact, that the deed of trust was made solely on that ground. 2. That the trust having been granted as a security against the liability of the trustees under the administration bond, it could not be revoked until that liability was discharged. 3. That there is no principle of law, or equity, on which the trustees could be referred to the security of the guardianship bond, when they had stipulated for the legal title to, and the possession of, the property itself.
    Hunt, for the motion.
    
      Pepoon, and Petigru, contra.
    
   Harper, J.,

delivered the opinion of the Court.

We are of opinion that the case was for the discretion of the Chan•cellor, and that we cannot interfere with his decision. It is manifest, ■that no beneficial interest is given to the trustees, Jones, and Wads-worth, by the deed in question. It could not even answer the purpose ■of a security, as they were bound at all events to discharge the trusts they had undertaken. And although their having been sureties for Mrs. Knust on her administration bond is stated in the trust deed, as a consideration of the grant, it was a consideration which enured to the benefit of the infant, and not of themselves. Their friendship to the father is mentioned as an inducement to the purchase made for the son.

What I have most doubted, is as to the form of the application. The English authorities certainly are, that to remove a trustee the proceeding must be by bill; and if it were sought to remove a trustee for misconduct, I certainly should think he ought to have the means of defending himself by an answer. The proceeding by petition is, however, more used by us than in the English practice; and if the office of trustee were vacant, I think it might be filled upon petition. In strictness, the office was not vacant in this instance, for the trust devolved on the executrix. Yet a trust must be regarded in some degree as a personal confidence, and the Court will more readily transfer it, when it has devolved on a stranger to the cestuy que trust. However this may be, it does not appear from the decree, that any objection to the form of the proceedings was taken at the hearing; nor does it form a ground of appeal. We think it too late to take the objection now. The respondent may have a reference on the subject of her accounts, with every advantage that she would have had, if the proceeding had been by bill. The motion is dismissed.

Johnson, J., and O’Neall, J., concurred.

Decree affirmed.  