
    In the Matter of the Trusteeship for the Benefit of William Boerum Wetmore under the Last Will and Testament of Samuel Wetmore, Deceased. Katherine B. Wetmore, Appellant; Wenonah Wetmore and Others, Respondents.
    First Department,
    May 11, 1906.
    Trust — trustee, should only be appointed by court On notice to beneficiary and remaindermen — when order of reference is proper to determine right of appointee of deceased trustee to act.
    Although no person can be appointed to execute a trust except upon notice to the beneficiaries and to those entitled to the remainder, yet when the court has ' appointed a referee to take proof as to facts alleged in a petition to revoke an appointment made without notice to remaindermen, the order Of reference will be confirmed when the remaindermen have subsequently appeared' and ’consented to the reference.
    When a surviving testamentary trustee had power to appoint a successor, and only after the appointment of a trustee by the court the appointee of such, deceased trustee presents an appointment executed ten years before and not acknowledged or recorded until three years after execution, "under which appointment the appointee never assumed to act, but- allowed the. life beneficiary to remove the trust property from the State, the court will confirm an order of reference to take proof of the facts alleged.
    Appeal by the petitioner, Katherine B. Wetmore, from so much of an order of the Supreme Court, .made at the Mew York Special Term and entered in the office of the clerk of the county of New York on the 22d day of May, 1905, .as appoints a referee herein and directs him to take certain proofs.
    
      Lewis L. Delafield, for the appellant.
    
      John M. Shedd, for the respondents.
   Ingraham, J.:

One Katherine B. Wetmore, of the city and county of New York, presented a petition to the Supreme Court alleging that by an order entered on the 10th day of July, 1899, and an order entered on the 23d day of August, 1900, the Continental Trust Company, of the city of New York, was appointed to execute a trust provided for by the will of Samuel Wetmore, deceased. This trust consisted of $100,000, the income thereof to be .paid to the testator’s' son, William B. Wetmore, during his life, who was authorized to dispose' of the trust property by a last will and testament, but upon the decease of William B. Wetmore, without exercising his power of appointment, the trust fund was to go to his next of kin. The trustees named in this will are all dead, and by the order sought to be vacated in this proceeding the trust company was appointed to execute the trust. The will of the testator provides that in case of the decease, removal or inability of any such trustee then I authorize and request the acting or remaining, trustees or trustee of any such trust (with the concurrence of the party or parties beneficially interested in the same, if of full age and competency, but otherwise of their own motion) to appoint by deed such other suitable, competent and discreet person or persons as he or they may think proper-, to fill the vacancy or vacancies caused as aforesaid, * * * provided that the appointment of any such trustee and his acceptance of the office or' duty of such trustee shall be made in writing and duly proved or acknowledged and recorded in the* office of Register or filed in the office of the Clerk of the City and County of New York, and that proper conveyances or transfers of title be executed so as to carry such appointments into full effect.”

There is annexed to the petition what purports to be an instrument executed by Sarah T. Wetmore, the last surviving trustee, appointing the petitioner trustee. This instrument purports to be executed by the mark of Sarah T. Wetmore, the last surviving trustee, and its execution as to said Sarah T. Wetmore was proved on' the 2Jth day of April, 1896, by the subscribing witness to the instrument, but was not acknowledged or its execution proved by the other parties to the instrument until March and June,- 1903,' nor does it appear when they executed it, and it was not recorded until July,3, 1903. It purports to be dated over three years before the first order sought to be vacated was entered. Mrs.-Wetmore lived for some time after this paper was executed, but during her life the appointee made no attempt to act as trustee, nor did §he appear and oppose the order appointing the trust company to execute the trust, and ten-years after it purports to have been executed it is presented to the court for the first time to be enforced. ' When this application was presented to the court it was on notice to the trustee, the children of the. life beneficiary not having received notice. The rule is well settled that no order' can be made in relation to a change of trustees, or the appointment of a person to' execute a trust without notice to the beneficiary and those entitled to the remainder. ' . ■ ■

In opposition to this application the trust company appointed to-execute the trust submitted am affidavit stating that the children of William B. Wetmore would be entitled to the fund in the event that the life beneficiary should die without exercising the power of appointment, whereupon the court made an order directing that these children should be made parties to this proceeding, and also appointing a referee to take proof of the facts stated in the, applicatibn. Tbe petitioner appeals from so much of the-order as appoints a referee.'to take proof of such'facts. . •

The circumstances disclosed winch surrounded the execution of. this'instrument, -the fact of the relationship of the person appointed; trustee to the life beneficiary, the further fact that for years, the life beneficiary, as the executor of the last surviving trustee, • has had the securities of this trust in his possession and has refused to obby the order of the court and turn these securities over to the new trustee, keeping, out of this State with such securities, in defi-. ance.of the law of this State and of the orders of the courts of this State, .might have justified the court in refusing to entertain any application of this kind until'the securities in which the estate is invested were restored to the legal custodian by the life beneficiary. But as the trust company has not appealed from this order, but asks that it be affirmed, it is not necessary at this time to express any further opinion upon that question. The appointment of a referee was irregular in that the persons who would be entitled to' the trust property on the death of the life beneficiary were net parties to the proceeding;' but as it appears that they have been made parties to the proceeding and have appeared therein, and on this appeal have submitted a brief asking that the order, so far as it appoints a referee, be affirmed, there is no reason for setting it aside until they could be heard, and as we are of the opinion that it would have been error for the court to grant this application without a full disclosure of the facts under which this alleged appointment was executed, we think it was proper for the court to order such an investigation.

• It follows that the order appealed from is affirmed, with ten , dollars costs and disbursements.

O’Brien, P. J., McLaughlin, Clarke and Houghton, JJ., concurred.

Order affirmed, with ten-dollars costs and disbursements. Order filed.  