Opinion
March Term, 1901.
Order affirmed, with ten dollars costs and disbursements.
This appeal involves the question, whether the Special Term was justified in appointing a new trustee of a testamentary fund in place of Claiborne Ferris, deceased. The appellant claims that there is no necessity for any appointment. Briefly stated, the essential facts are that James Ferris, by the 9th clause of his will, created a trust fund for his daughter Sarah, in the hands of Claiborne Ferris and others, his executors. They are now all dead. By a judgment of the Supreme Court in 1897, in an action to construe the will, it was adjudged that as Sarah had died in 1889, this trust fund belonged to the heirs of James Ferris and should be allotted to them. The fund remained in possession of Claiborne Ferris, undistributed, up to the time of his death, in 1899. In it is the sum of $5,333 received from the city in condemnation proceedings of property on Bayard street. The petitioner, one of the children of the testator and a devisee under the will, prayed for the appointment of a new trustee, for the purpose of executing and carrying out the provisions of the 9th clause of the will, that is, to distribute the fund among thirty-four parties interested Apparently, all these parties except the appellant assented to, or did not dissent from, the distribution of the fund through a substituted trustee, and the court appointed a new trustee, for the purpose of executing and carrying out the trust, and directed the sum of $100 costs to be paid to the petitioner out of the funds. A motion for reargument was made and denied. Upon the death of the trustees, the trust devolved upon the Supreme Court, and the court had power to appoint a new trustee (Laws of 1882, chap. 185), and its selection of a proper person is in a large measure a matter of discretion. ( Milbank v. Crane, 25 How. Pr. 193.) There seems to be no good reason for interference with the order of the Special Term, either as to the appointment of a new trustee or as to the allowance of costs, and the order should be affirmed, with costs. All concurred, except Sewell, J., taking no part.