Green v. Green , 4 Redf. 357 ( 1879 )

The Surrogate.—While it is true that where there is a special trust devolved upon the executor, the acceptance of the office of executor will be regarded as an acceptance of the accompanying trust (3 Redf. on Wills, 430, and cases cited), yet the presumption thus arising may be overcome by proof that he declined the trust. One may disclaim a trust as effectually by words or acts without deed, as by deed. (Id., 528, citing Stacey v. Elph, 1 Myl. & K., 199.) Aside from the fact that Harvey Green qualified as executor, there is no evidence that he ever entered upon the duties of trustee under the will, while the proof shows that he declined to, and never did act in that capacity. His brother, the cestui que trust, seems to have objected to his acting, and desired that the management of the fund should be intrusted to Turk, in whom he confided. The latter accordingly took it, and for aught that appears invested it properly, and paid over the interest, together with about one-fourth of the principal, during Ms life, to the petitioner. The latter can base no claim against this executor on the fact that he furnished him, since Turk’s death, some means of support out of his private funds.

It is true Turk did not qualify as executor of the will, but that would not prevent him from executing the trust. A trustee in a testamentary power may execute it, though he has not qualified as executor. (Judson v. Gibbons, 5 Wend., 224; Williams v. Conrad, 30 Barb., 524.)

The fund, then, having passed into the hands of Turk, according to the expressed wishes of the cestui que trust, who assumed the execution of the trust, and this executor never having acted as trustee, or received, or in any way intermeddled with it, the petitioner must resort to his remedy against the estate of Turk ; for he has none against this executor.

' Application dismissed. .