
    In the Matter of the Application of Bessie V. Reinisch and Grace E. Welch, for the Appointment of a Trustee in the Place of Henry A. Bassford, Deceased, under a Deed of Trust Dated the 20th Day of October, 1884, between Virginia L. Welch and Henry A. Bassford. Edwin V. Welch and George F. Elliott, as Trustees, etc., Appellants ; Bessie V. Reinisch and Grace E. Welch, Respondents.
    
      Trusts—appointment of a new trustee of an express trust — notice to remainder-men— rights of remaindermen not within the State.
    
    Upon the death of the sole trustee of an express trust the court has power, under section 91 of the Real Property Law (Chap. 547, Laws of 1896), to appoint a sue-, cessor upon notice to the actual beneficiary and also to the remaindermen; and if any of the latter, having an interest, are without the jurisdiction of the court and cannot be served with notice, they may apply to the court for protection.
    Appeal by Edwin V. Welch and another from an order of the Supreme Court, made at the New York Special Term and entered - in'the office of the clerk of the county of New York on the 6th day of May, 1891, appointing a trustee to execute a trust under a deed of trust bearing date October 20, 1884, between Virginia L. Welch and Henry A. Bassford, in the place of Henry A. Bassford,. deceased.
    
      Henry M. Dater, for the appellants.
    
      Frederick F. Neuman, for the respondents.
   Ingraham, J.:

The court in this case appointed a person to execute a trust vested in the Supreme Court by the death of .the trustee named in the instrument creating the trust.

We have held in The Matter of the Application of Edwin V. Welch (ante, p. 412), decided herewith, that the court below properly vacated the order theretofore entered ex parte, appointing one George F. Elliott as substituted trustee, in place of the deceased trustee. When this order was entered, therefore, the order appointing Elliott having been vacated, there was no person appointed to execute this trust as the representative of the court, the former trustee being dead, and the appointment of Elliott having fallen by the vacation of the order ajipointing him. The court clearly had the power under the statute to designate a person to execute the trust vested in it upon the death of the sole trustee. We think the court had the power to and . should hear the remaindermen upon tile appointment of the person who was to execute the trust. No reason is suggested why the gentleman appointed by the court below is not an entirely competent person to execute the trust.

There is nothing in the affidavit of Henry M. Dater in opposition to this motion which prevented the court from making this order. The deed creating the ■ trust is not before the court, and we are unable to say just who were entitled to the remainder after the death of the person entitled to the income for his life. All that we have is the allegation of the petition that by the deed creating the trust, it was provided that the- rents, issues and profits were for “the support and .maintenance of Edwin V. Welch, the father of the petitioners, during his life¡ and upon his death to apply the same to the support of his wife and children, if there be any of them surviving him, during the life of the said Virginia L. Welch, and at. the death of the said Edwin V. Welch, in case the said Virginia L.. Welch should not be living, then to. divide the said lots in equal .shares among the children and descendants of children,per stirpes,. of the said Edwin V. Welch then surviving; ” that the said Virginia L. Welch is dead, and that the said Edwin V. Welch, her son, is still alive and has children, the two petitioners and one Sidney L. Welch, who is twelve years of age, and George R. Welch, who is sixteen years of age.

In the affidavit of Henry M. Dater it is stated that the said Edwin V. Welch was remarried after his divorce from the mother of the petitioners, and has children living who reside with the said Edwin V. Welch in the State of Ohio. Upon the papers presented upon this appeal we cannot say that the children of the said Edwin V. Welch residing in Ohio are interested in this trust property. They are, none of them, alleged to be within the jurisdiction of the court, nor can service be made upon them. If they have an interest in this trust property they can apply to the court for protection.

The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements..

Van Brunt, P. J., Rumsey and Parker, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. .  