In re Van Schoonhoven

5 Paige Ch. 559, 1836 N.Y. LEXIS 199, 1836 N.Y. Misc. LEXIS 70

• Court: New York Court of Chancery
• Decided: March 15, 1836
• Status: Published

Opinion

The Chancellor.

It has frequently been decided by this court, that if one of two or more joint trustees, appointed by deed or will, refuses to accept the trust and execute the same, the whole of the trust estate vests in the other trustees who accept the trust. And where the trustee thus refusing, executes a formal renunciation of the trust, he cannot afterwards accept and execute the trust, unless it be under a new appointment as trustee. In this case, the whole of the trust property was, by the renunciation of Craig, irrevocably vested in Van Schoonhoven and M’Coun, his co-trusteés; and upon the death of the latter, it became vested in Van Schoonhoven solely, as the surviving trustee. This court has, therefore, no power or authority to change the legal effect of the renunciation of Craig, and to restore him to the trust. The power which is given to this court to appoint a new trustee of an express trust, by the provisions of the revised statutes, does not extend to a case like the present. The sixty-eighth section of the article relative to uses and trusts, (1 R. S. 730,) only authorizes the appointment of a new trustee where the only surviving trustee happens to die, so that there is no one left to execute the trust. And the seventy-first section merely authorizes the court to appoint a new trustee in the place of one who is removed by the court, or whose resignation is accepted after he has once assumed the trust.

As the court has no power or authority to restore Dr. Craig to the trust which he has renounced, or to appoint him a trustee, so long as one of the trustees who originally accepted the trust continues to act as such, the petition must be dismissed.