Davis v. Browne

2 Del. Ch. 188

Opinion

Harrington, Chancellor.

The ultimate object of this bill is to bring the executor and trustee of Samuel B. Davis, deceased, to an account of his trusteeship, and to prevent his so administering the trust as to defeat the will of the testator and injure the devisees and legatees.

The object of the present motion is for immediate action, before answer, by injunction and temporary removal of the trustee. I think the case made by the bill sufficient to ground the application. It. charges not merely such mal-administration of the trust that it would be sufficient to rest upon the responsibility of the trustee and his sureties ; but it is alleged that acts are threatened which might be irremediable.

I observe that the bill is defective in charging the defendant only as executor, in which character he is responsible to another tribunal. He should be charged as trustee.

Mr. Hood, upon leave granted, amended the bill, according to the Chancellor’s suggestion; and the orders moved for were then granted.

Footnotes

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The reporter, who was the defendant’s counsel in this ease, deems it. just to his memory to state that the charges in the bill were fully met by his answer soon afterward filed, in which he alleged that the sale of the specific legacy by him as executor, was required for the payment of the testator’s debts ; that he had paid the debts to the extent of the assets ; that the sale of the family plate was with the approval of the widow ; that he had not speculated in any securities of the estate, but had faithfully applied all the assets realized ; that he had not threatened the sale of the un'-" improved land referred to in the bill further than to express the opinion, which he still held, that its sale and the investment of the proceeds would be for the benefit of the cestuis que trust; that, considering the trust as attended with a power of sale under the will, he had entertained the question of its expediency ; and the answer insisted that the trustee had in all things acted in good faith. The trustee dying after the answer was filed, the proceeding dropped.