
    
      Ex parte, Virginia Galluchat and her minor children.
    The Court of Equity has no power to substitute an executor in the place of another; but where an executor has removed from the State, leaving his cestui que trusts and the trust estate, the Court will, on the application of the cestui que trusts, appoint a receiver,  [*150]
    
      Quaere. — Can the Ordinary appoint an administrator, where the executor had made probate and gone without the State ?
    This was a petition for the substitution of a trustee, under the following circumstances : — Th.e Rev. Joseph Galluchat, by his will dated at St. Augustine, on the 1st January, 1825, among other bequests and provisions directed as follows, “ all the rest, remainder and residue of my property and estate, shall be vested in some safe and productive stock, the interests and profits of which I give to my wife Virginia, during her lifetime, or so long as she shall remain my widow.” It was further provided, that if either of the testator’s children, during the widowhood of his wife, should arrive at full age, or marry, then his said widow should be authorized, at her discretion, to give such child a portion of the estate; and at the death of the widow, the rest and residue of the estate was to be equally divided between the children of the testator. The *executors appointed by the will are Dr. S. H. Dixon and Duke Goodman, of whom the latter alone ever qualified or acted in the management of the estate. At the time of filing the petition, the residue of the testator’s estate consisted of a bond and mortgage of the petitioner, (Mrs. Galluchat) taken for a loan made to her by the executor, under the authority of the Court, and also of fifty-seven bank shares. It also appeared that the said Duke Goodman, the executor, had recently left the State, and removed to Mobile in the State of Alabama, where he for the future will reside permanently, Before he left the State, he accounted fully before the commissioner for his management of the trust estate, under the will of Mr. Galluchat; and since his determination to settle in Alabama, he has written to request that he may be released from the trusts imposed on him under said will. The commissioner of the Court, Mr. Gray, also expressed in writing his willingness to be substituted in his stead, as the trustee of the petitioners. The petition was presented in behalf of the widow and minor children of Mr. Galluchat, and prayed for the said substitution of the trustee. It was rejected by Chancellor Johnston, on the ground that he had not power to grant it; that if Mr. Goodman chooses, he may appoint an attorney to act for him under the ¿rusts confided in him as executor by the will, but that the Court had no power to discharge him, and appoint or substitute another. A motion is now made to reverse this decree, on the ground that under the circumstances of the case the chancellor has authority, and ought to grant the prayer of the petition.
    
      
       Haigood v. wells, ante 59.
    
   O’Neall, J.

It appears that when an executor is resident put of the >3tate, and has never made probate of the will, the ordinary may grant administration cum testamento annexu durante ahsentiu.

In 4 Mod. 14, (1690) sci. fa. was brought by J. Hodge, administrator of A. Hodge, during the absence of N. Hodge, upon a judgment recovered in the Court of King’s Bench, upon which there was a writ of error brought in the ^Exchequer Chamber, and judgment affirmed ; it was, among other things, objected, that the ordinary had no comrnon law power to appoint — that his power was by statute; but the objection was overruled by Slater v. May, 2 Lord Ray 1071, recognises the power of the ordinary to appoint an administrator durante absentia, when the executor is beyond the realm.

The Stat. 38 G. 3, c. 87, gave the ordinary power to appoint an administrator, when the executor had made probate, .and gone without the realm. Lord Alvanley’s judgment in the case of Taynton v. Hannay, 3 B. & P. 30. Whether the ordinary may not, in this State, exercise a' similar power, it is not now necessary to examine. A case involving some such question, was, it is believed, decided some years ago in Columbia, and it is therefore intended to leave that matter perfectly open for future examination. In any event, whether the ordinary has or has not the power to appoint, there can be doubt that the Court of Equity may, in some shape, give relief to the parties in interest, where the executor has abandoned his trust, and removed from the State; Buchanan v. Hamilton, 5 Ves. 722. I agree, however, with the Chancellor, that this Court has no power to substitute another in the place of, and to act as, the executor of the testator. The act of ’96, for the substitution of a trustee, does not apply to such a case. It is true, an executor is a trustee, yet it is not by this general name he is distinguished and known in our acts of the legislature; he is always called an executor, as will be seen by referring to all acts in relation to executors or administrators. The separation, of executors from trustees, who have no specific legal name, is clearly made by the act of 1T45, providing for the compensation of executors, administrators, guardians or trustees, in the discharge of their respective duties and trusts. The act of ’96 applies to trustees created by deed or will, to whom estates, real or personal, are conveyed or devised to be held for, assigned to, or managed for, another. The executor is a trustee known by a specific name, designating his office, and is not embraced by the general term trustee, used in the act. His is a general trust — their’s special. His authority *and duty arise both from law and the will — their’s from the terms and object of their appointment.

In this case it appears,' or rather I so understand from what is stated, that the bank stock stands on the books of the bank, in the name of the executor; and that the bond and mortgage of Mrs. Galluehut are also to him. He has left the scrip for the bank stock, and the' bond and mortgage, with two of his friends, to be deposited for safe-keeping in the Planters’ and Mechanics’ Bank. No person, so far as I am able to discover, has any authority from him to recover the dividends of the bank stock, or to see that the security for the payment of the bond, the property mortgaged, is not aliened or removed. Under these circumstances the question is, will the Court not interfere, both for the preservation of the trust fund, and for the correct appropriation of the income ? As long as the executor remains within the jurisdiction of the Court, the Court would not, unless under very extraordinary circumstances, deprive him of the management of the trust; yet when he removes from the State, will the Court permit him either to remove the trust estate, or manage it ? His removal places him beyond the process of the Court, and he is no longer liable to account to it. His removal of the trust estate might enable him to defeat the trust, and his management of it by attorney, might place it in irresponsible hands, and have the same effect. In some cases, as when the executor and his cestui que trusts remove together, the Court would permit him to remove the trust estate, and it may be that under circumstances showing that it was for the benefit of the estate, the Court would not interfere to prevent the attorney of an executor who has removed from the State, from managing the trust estate.

But generally, when an executor removes from the State, leaving both his cestui que trusts and the trust estate in the State, it is the duty of the Court of Equity, on the application of the cestui que trusts, to appoint a receiver. For there would, in such a case, be an abandonment of the trust, voluntary, it is true, on the part of the executor, and which cannot therefore benefit him, but which *the Court will take care shall not prejudice the cestui que trusts In this case the executor Goodman appears to have acted in good faith; he fully accounted under the order of this Court, and invested the balance of his testator’s estate agreeably to its order. He, as well as the petitioners, has asked the appointment of some one to act in his place. The commissioner, Mr. Gray, is the usual and proper person to be appointed receiver, and he has consented in writing to act in the place of Mr. Goodman. I think that the Chancellor, instead of dismissing the petition, ought to have appointed Mr. Gray the Commissioner, receiver for the petitioners.

It is ordered and decreed, that the decree dismissing the petition be reversed ; that James W. Gray, the Commissioner of this Court, be appointed receiver of the petitioners; and that upon the executor, Duke Goodman, transferring the bank stock, and assigning the bond and mortgage of Mrs. Galluchat, to the said receiver, he (the said Duke) be discharged from any future liability in relation to the same.

Johnson, J., concurred.

Harper, J., absent.  