
    Annette B. Wetmore (now known as Annette B. Markoe), Respondent, v. William Boerum Wetmore, Appellant, Impleaded with Others.
    
      Appointment of a trustee of personalty on the death of the original trustee — not without jurisdiction because entitled in an action theretofore brought by the original trustee and recited to be at the foot of the judgment therein—proper form of order..
    
    The fact that on the death of a surviving trustee of personalty, appointed under a will, a motion for an order appointing a trustee to administer the unexecuted . provisions of the trust, instead of being made on a special application under section 8 of chapter 417 of the Laws of 1897 and chapter 185 of the Laws of 1892, providing that in such a case the trust devolves upon the Supreme Court and that it is the duty of the court to appoint someone to execute it and invest the appointee with any Or all of the powers and duties of the original trustee, was ■ entitled in an action between the surviving trustee and other' parties relating to the disposition of the income of the trust fund and was recited in the notice • of motion to have been made in pursuance of a provision contained in the judgment entered in such action granting leave to apply at the foot of the judgment for other relief, does not prevent the court from acquiring jurisdiction to grant the order where the petition states all the j urisdictional -facts and all the interested parties are before the court.
    The order appointing the new trustee should conform, to the language of the statute. *
    Appeal by the defendant, William Boérum Wetmore, from aft order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of -the county of Hew York on the 11th day of July, 1899, appointing a substituted trastee.
    
      Thomas P. Wickes, for the appellant.
    
      Flamen B. Candler, for the respondent.
   Patterson, J.:

This is an appeal from an order appointing a corporation to administer the unexecuted provisions of a trust on the death of a surviving trustee. In an action between the plaintiff, the surviving trustee and other parties, a judgment was entered relating to .the disposition of "the income of the trust fund. By that judgment the net income of the fund was directed to be paid, for certain purposes, to the plaintiff; and there was also contained in it a provision that the plaintiff should have leave from time to time to apply at the foot of the judgment for such relief as might be necessary to enforce the rights of the plaintiff thereunder. The order now appealed from was made upon a motion entitled in this action and, according to the notice of motion, in pursuance of the provision last referred to. It is objected that the court did not acquire jurisdiction in consequence of the application being made in that form, but that objection is altogether immaterial. The application was made upon the petition of Annette B. Wetmore, who was directly interested, under the judgment, in the preservation and execution of the trust for the purposes of the judgment. The petition contains a statement of all the facts necessary to confer jurisdiction, and merely entitling it in the action does not affect the substance of the application, nor the fight of the court to make an appropriate order, the facts being before it. All those who are interested in the trust were before the court and had full opportunity to be heard and have their interests protected.

The order as made is in substance' correct. Upon the death of the trustee, the trust devolved upon the Supreme Court, and thereupon it became the duty of the court to appoint some one to execute that trust and invest the appointee with all or any of the powers and duties of the original trustee. (Laws of 1897, chap. 417, § 8.). With respect to trusts of personal property, a similar provision, of law has existed since the statute of 1882 (Chap. 185), before which, trusts of personal property upon the death of a trustee devolved upon the personal representative or next oí kin of the deceased trustee. The order appealed from is in artificially drawn in that it appoints a new trustee in the place and stead of the deceased trustee. That is an irregularity at most and one which is very common in proceedings of this character, for even the learned judges of the Court of Appeals have failed to give effect to the exact language of the statute and speak of the duty of the Supreme Court to appoint new trustees to execute a trust on the death of an original trustee. (Royce v. Adams, 123 N. Y. 402; Matter of Carpenter, 131 id. 86.) The power of the Supreme Court is to appoint its agent to execute the trust, but the inaccurate designation of the name by which that agent is to be known does not invalidate the order of appointment. (Matter of Tousey, 2 App. Div. 571; Faile v. Crawford, 30 id. 536.) The better practice in drawing an order of appointment is to conform to the language of the statute. In the order appealed from its essential requirement is followed, but not in form as it should be expressed. The order provides that the New York Life Insurance and Trust Company shall be vested.with all the powers of the deceased trustee, and in as full and ample a manner and with the same power and authority as though the said Trust Company had been originally named in the said will,” etc.

The order should be reformed by so molding its provisions that it shall recite that the trust company named is appointed by the Supreme Court to execute the trust and is invested with all the powers and duties of the original-trustee under the-instrument creating the trust.

With that modification, the order must be affirmed, without costs to either party on this appeal.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs to either party.  