
    In the Matter of the Appointment of a Trustee under the Will of Emilie Bartells, Deceased. Alvin L. Newmyer, Petitioner, Appellant; Leopold Rothschild, Trustee, Respondent.
    ■ First Department,
    December, 1905.
    Testamentary trustee — appointment without notice condemned — residuary legatee of trust fund proper person to petition for appointment Of or removal of trustee; ,
    Whether or not the Supreme Court has inherent power to appoint a testamentary trustee in the place of those who have resigned, without notice to those interested, such practice is bad. - ' 1 .
    A residuary legatee,of such "trust fund, whether his interest be vested or contingent, is a proper person to apply for. the appointment of such trustee or to petition for the removal of obé appointed without notice. .
    When such residuary legatee applies for the removal of a trustee appointed without notice without himself giving notice to other persons interested, his petition should' not be dismissed, but those interested should be ordered to be brought in. '
    ■ Appeal by the petitioner, Alvin L. Newmyer, from an order of the Supreme Court, inade at the New York Special Term and entered in the office of the clerk of the county of New York on the ■8th day of Juñe, 1905, denying the petitioner’s motion for the appointment of a trustee in the place and stead of Leopold Rothschild.
    
      Gilbert W. Minor, for the appellant.
    
      William M. Hamilton, for the respondent.
   Houghton, J.:

Emilie Bartells died leaving a will in which she gave toffier executors the sum of $5,000 in trust to pay the income to her sister Cecelia Nathan during her life, and upon her decease to pay the principal to the children then surviving of four nieces which were named. She also gave a like sum in like manner, the income of which was to be paid to her sister Jeanette Rothschild during her life, the principal payable on her death to the same persons.

The will was duly proved and the executors named renounced and resigned, as the record discloses, their trusts both as executors and testamentary trustees. Thereafter, this respondent, Leopold Rothschild, applied to the Supreme Court, and on the 7th day of May, 1902, without notice to any of the parties interested in the fund, either directly or contingently, was appointed trustee of these two funds, and authorized to receive the bequests from the administrators with the will annexed of the deceased testatrix, and is now acting as such. Thereafter the appellant, who is one of the class named as residuary legatees on the death of the life tenants, presented a petition to the Supreme Court, setting forth the fact that the respondent was appointed without notice, and-alleged, among other things, that he was hostile to some of the residuary legatees and an improper person for the position. The court denied his application, and from that determination he appeals.

The respondent insists that the Supreme Court has inherent power to appoint a trustee without notice. Whether it has or not, the practice of so doing is bad and has been condemned by this court. (Matter of Welch, 20 App. Div. 412.) The petitioner has sufficient interest in the fund to qualify him to petition for the appointment of a proper trustee, or the removal of an improper one. Whether his interest in the corpus of the fund .is vested or contingent does not matter. If vested, he certainly has the right. If contingent upon his surviving the life tenants, he still has such possible interest as qualifies him, for, in law, -the remainder would be vested in him subject to be divested by his failure to survive the life tenant. Any person interested absolutely or contingently in a fund in the hands of a testamentary trustee acting by authority of he Surrogate’s Court, may petition that court for an accounting by he trustee (Code Civ. Proc. § 2803), and no different rule prevails n this court.

It is urged that the appellant gave no notice of his application to emove the trustee to any of the persons interested in the estate, he having brought into court only the trustee. This was not ground for dismissing his petition. The Special Term should have ordered those interested in the estate to be . brought into court and then passed upon the merits of the application. .

The order should be reversed and the matter remitted to the Special Term, for further consideration, with ten dollars costs and disbursements, payable by the respondent personallyi

O’Brien, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, payable bv the respondent personally, and.-matter remitted to Special Term.  