Carr v. Corning

Young, J.

. The defendant says (1) the power of approval is vested in him in his individual and not in his official capacity; (2) if it was the intention of the testator that the probate court should approve the appointment, the power of appointment fails because it is an attempt to confer upon the court a jurisdiction not conferred by law.

1. There is no force in the defendant’s first position. In title 25 of the Public Statutes, entitled “ courts of probate, and estates of deceased persons,” the words “ judge ” and “ judge of probate ” are constantly used when it is apparent the probate court is intended. For example, chapter 182, Public Statutes, is entitled “ judges of probate and their jurisdiction.” It is a matter of common knowledge that when a person attending to probate business or considering probate matters speaks of referring anything to the judge of probate, he usually intends the probate court and not the person who exercises the function of that office. That is probably the sense in which Mr. Pearson used the words in his will, for the probate court has jurisdiction of wills and of the estates of deceased persons. P. S., c.

182, s.

2. When he provided that the persons who were to administer the trust he was creating should be approved by the judge of probate, there is a presumption that the probate court was intended; and the fact that the law makes it the duty of that court to approve the appointment of trustees, as will hereafter appear, makes that presumption so strong that the mere addition of the words “ for the time being ” is not enough to rebut it.

2. The defendant’s second position is also unsound, for clause XII, section 2, chapter 185, Public Statutes, authorizes the probate court to appoint the trustees named in a will; and a trustee who is named in the way the testator has provided to perpetuate the will is “ named in the will,” within the meaning of that statute.

Shaw v. Paine, 12 Allen 293 , 296.

It is the duty of the probate court to administer trusts created by wills. P. S., c.

198. This duty necessarily carries with it that of appointing the trustees needed to execute such trusts (P. S., c.

185, s.

2, cl.

XII;

lb., e.

198, s.

6), and that of removing them if they become incapable or unfit to perform their duties, lb., c.

198, s.

8. Since it is the duty of the court to remove trustees who are unfit to administer tlieir trusts, it cannot be the duty of the court to appoint a person to that position unless it appears that he is fit *366 for it, notwithstanding he is named as trustee in the will which creates the trust; fer it would be a manifest absurdity to say that it is the duty of the court to appoint a person trustee, when it would be its duty to remove him as soon as he was appointed. So it must always appear that the person named in the will is a fit person to execute the trust, for otherwise it would be the duty of the court to refuse to appoint him. In other words, it is the duty of the probate court to appoint trustees whenever they are needed to administer trusts created by wills; but its authority in that respect is limited to persons who are suitable to execute the trust, both when the trustees are named in the will which creates the trust and when the will contains no provision for the appointment of the trustees. Therefore the suitability of the trustee is a fact that must be proved in every case, before the court is authorized to make the appointment. In other words, the probate court must decide that the person named in the Avill is a suitable person to administer the trust before it can appoint him to that position. This is the statutory rule in respect to appointing the executors who are-named in a will. P. S., c.

188, s. 2, cl.

1; lb., c.

188, s. 3. There is no more reason for requiring the court to examine into the suitability of executors to administer a deceased person’s estate than there is for requiring it to inquire into the suitability of trustees to administer a trust the deceased person created. The fact that the statute makes it the duty of the probate court to inquire as to the suitability of the person named as executor before appointing him to that position tends to prove that the legislature intended that the court should inquire as to the suitability of the person named as trustee before appointing him to that position.

Since the law malíes it the duty of the probate court to approve trustees named in a will before appointing them, it is obvious that the mere fact that the testator made it the duty of the probate court to approve trustees named in accordance with the provisions of the will does not make it illegal for the court to approve them; for it cannot be illegal for the court to do its duty merely because some one requests it.

Case discharged.

All concurred.