Raleigh Real Estate & Trust Co. v. Padgett

140 S.E. 714, 194 N.C. 727, 1927 N.C. LEXIS 193

Opinion

Clarkson, J.

C. S., 2583, in part, is as follows: “When the sole or last surviving trustee named in a will or deed of trust dies, removes from the county where the will was probated or deed executed, and from the State, or in any way becomes incompetent to execute the said trust, or is a nonresident of this State, the clerk of the Superior Court of the county wherein the will was probated or deed of trust was exe cuted is authorized and empowered, in proceedings to which all persons interested shall be made parties, to appoint some discreet and competent person to act as trustee and execute the trust according to its true intent and meaning, and as fully as if originally appointed,” etc.

Defendants contend that the deed made by Thomas H. Calvert, successor trustee, was void, for the reason that the statute was not complied with; that the paper-writing signed by John H. Boushall was not sufficient to allow a substitution; that should the court find that the provision of said deed of trust is sufficient to allow a substitution of trustee in the manner in which it was made, the defendants contend that the fact that John H. Boushall was living in the State of Florida was not a sufficient disqualification to permit a substitution of the trustee and that his resignation did not cure this defect.

We cannot so hold. The statute is not applicable. The parties have contracted and we are construing the agreement entered into hy them. In the purview of the agreement, 'we are of the opinion, in the sense used, as shown by the record, that the resignation was a disqualification. See Thompson v. Wynne, 127 Miss., p. 773. The judgment of the court below is

Eeversed.