Cruger v. Halliday , 3 Edw. Ch. 565 ( 1842 )

The Vice-Chancellor :

The demurrer goes to the right of two of the complainants, Messrs. Strong and Depeyster, to file or be instrumental in filing of this bill: on the ground that the bill does not sufficiently show a title in them—or, in other words, how and in what manner particularly they have been appointed trustees under the will of the late Mrs. Douglass. This will appoints four executors and trustees ; and it provides that, inasmuch as the trusts may endure until the trustees are reduced by death or removal from the United States or otherwise to the number of two or one, that, as often as it shall happen that the trustees are so reduced in number, new trustees may be nominated and appointed in one of two modes pointed out by the will for that purpose, who are to be associated with the said two or one surviving or remaining trustee.

The bill then shows that two of those persons who were named in the will, as trustees, declined to take on themselves the office of executor and trustee ; and, in pursuance of the provisions of the will, John Whetton was appointed about the first day of June, one thousand eight hundred and thirty-three, to act as trustee in the place of the two who had declined and in conjunction with the remaining two who had previously, duly, taken on themselves the office.

The first question is : whether the reducing of the number of trustees to two, not by death nor by removal from the United States, but by the refusal to serve of two of those named, is such an event as the will, by fair construction, has provided for ?

The language of the will is broad enough to allow of such a construction ; and I have no doubt it was intended to give the power, in any event that might occur, to reduce the number, whether by death, removal from the United States, removal from office for cause, resignation or refusal to serve. The words “ or otherwise” are sufficiently comprehensive to include all cases of vacancy, besides those specified ; and I cannot but think the refusal to accept the office of trustees created such a vacancy as it was competent to supply in the manner prescribed by the will, without any application to the court of chancery.

The bill then states, that Mr. Whetten having resigned the office of trustee, Mr. Strong, one of the present complainants, was duly appointed trustee under the will with the other two original trustees.

And here another question arises : whether Whetten could resign so as to create such a vacancy as could be supplied by the appointment of another in the manner authorized by the will 1

It is said that a voluntary resignation of a trustee is not effectual for any purpose, unless it be with the assent of the cestui que trust or under the direction of the court of chancery : Shepherd, survivor, &c. v. M'Evers, 4 John. C. R. 136. The bill does not show but what every thing has been done which was necessary to render the resignation an effectual one. It states the fact distinctly that Whetten having resigned his office of trustee, Mr. Strong was duly appointed trustee under the will, &c. Is not this all that can be essential to allege in pleading ?

Another question of the same import arises upon the allegation that Mr. Strong was duly appointed trustee; and that Robert Halliday, one of the original trustees, having died, Mr. Depeyster was duly appointed trustee under the said will, &c. without specifying in what manner in particular and by whom they were appointed—the bill alleging, moreover, that Mr. Strong and Mr. Depeyster have both accepted and taken upon themselves the office of trustee. They are then trustees de facto in conjunction with Harriet Douglass Cruger, one of the original trustees ; and this appears to me to be enough for all the purposes of a pleading. The object of a pleading is to present facts and not the evidence of facts, the latter are reserved for the hearing. Here we have the fact presented that the parties exhibiting this bill are the present trustees under the will duly appointed as such and holding and exercising the office for the purposes of the trusts thereby created. If the fact should be controverted or not admitted in an answer, the complainant will have to prove that they are trustees, and perhaps, not merely de facto but also de jure. The court may possibly, on the hearing, be called upon to inquire into the manner of the appointment of Mr. Strong and Mr. Depeyster ; and to say, whether they have been duly appointed according" to the provisions of the will ? But I am satisfied their title of trustees sufficiently appears on the face of the bill to give them a right in that respect to be parties to it.. In a bill filed by an executor or administrator, it is held to be sufficient to allege that he has duly proved the will or has duly taken out letters of menlary or letters of administration at the hearing : Humphreys administration, although the ¿plaintiff must show letters testa v. Ingledon, 1 P. Wms. 753, and Stone v. Baker, cited in a note to that case.

Another objection taken by the demurrer is, that the bill does not show that an assignment or transfer of the securities in which the trust funds may happen to be invested has been made as directed by the will whenever a change or new appointment of trustees shall take place. This provision of the will, I am inclined to think, is merely directory, and that the omission to make a formal assignment or transfer in writing (if that be the meaning) will not invalidate the appointment or title of new trustees. But an assignment or transfer is matter of evidence at the hearing ; and under the allegation that these new trustees have been duly appointed and hve acc epted and taken on themselves the office, it is to be inferred that every thing has been done to constitute them trustees de jure until the contrary appears.

The demurrer must be overruled, with costs; and the defendant is to answer in twenty days.