Aside from this sort of resignation, the courts do not favor the resignation of a representative, and it is within their power to accept or to reject any resignation tendered them. The resignation of any executor or administrator must be based upon a good and sufficient cause or reason.

For these reasons there are few actual resignations in this office, and the representative once appointed usually continues until his appointment is revoked by the court or until the estate is settled, when he may apply for a release or discharge from his office.

The death of an executor or an administrator is treated not as a resignation but as a discharge by the court, and releases his estate from further responsibility. The representatives of the deceased executor may be compelled to settle any debts or liabilities of the executor incurred while he was handling the estate, and may also be compelled to render a final accounting of the estate in their testator's hands.

§ 169. Procedure for Resignation

Where, however, the representative does wish to resign, the statutory requirements are usually about as follows:

The representative presents to the court which issued let-. ters to him a petition asking that his account be examined by the proper persons and be declared settled by the court upon a favorable finding of such persons; that a decree be made by the court revoking the letters issued to him, or allowing him. to resign and giving him a discharge; and that the required persons be cited to attend in order to oppose his discharge if they so desire. This petition must also state the representative's reasons for wishing to obtain a discharge.

If this petition is favorably received by the court, it will proceed to order those acts enumerated in the preceding paragraph carried out. Then, when the representative has given the court a complete and final accounting and has turned over

all books, papers and other property pertaining to the estate, which he may have, the court will make a decree discharging him from the office and ending all further responsibility on his part.

REVIEW QUESTIONS

1. Distinguish between renunciation, revocation, and resignation. 2. How does one accept an executorship?

3. Is there any compulsion on anyone to accept an executorship? If the executor was a legatee under the will could he refuse to act? If an executor had interfered with the assets before appointment, could he renounce his trust?

4. Is the form of renunciation essential?

5. Who can revoke the authority of an executor or an administrator?

6. How may a testator change his appointment of an executor? 7. Who may ask for the removal of an executor or an administrator? How would he do it?

8. For what causes may an executor or an administrator be removed?

9. May a representative resign without cause? Is resignation common? What is the effect of the death of a representative? 10. What would be the procedure of a representative desirous of tendering his resignation? What may the court do in such a case?

CHAPTER XXI

TESTAMENTARY TRUSTEES

§ 170. Trusts

It is common in wills to provide that the executors shall hold certain property or certain investments in trust for the benefit of a certain person or persons during the life of the person or persons or during the minority of one or more persons. In such case the executors become testamentary trustees; that is, trustees appointed by will. The testator has created a trust, and because it is created by the explicit words of the will it is called an "express trust."

The word "trust" has been used so long in this country as the designation of a business monopoly, that it is difficult to realize its actual meaning when used as a legal term in this connection by the creator of a trust.

Where property is transferred by the creator of a trust to another to hold for the benefit of a third person, a trust has been created. There must be: (1) the subject matter, (2) the creator or original owner, (3) the trustee, and (4) the beneficiary, or in legal phrase, the cestui que trust. Under the arrangement indicated the legal ownership goes to the trustee, but the third person has a beneficial interest in it and is said to have an "equitable estate" in the property. If the trust property was real estate and some trespasser damaged the property, the trustee would bring suit in a court of law; but if the trustee failed to pay over the income to the beneficiary, the latter would have to sue the trustee in a court of equity.

The selection of a person to hold property for the benefit of a third person involves putting faith and confidence in his

integrity: literally, the creator trusts him with the property. Because of this he is termed the "trustee" and the arrangement is called a "trust," meaning thereby the obligation resting on a person to whom property has been given for a particular purpose, to apply the property for that purpose.

The foregoing may seem unduly drawn out, but it is worth some trouble to get a clear idea of the useful legal arrangement of a trust estate. The technical definition is "a confidence. reposed in some other, not issuing out of the land, but as a thing collateral, annexed in priority to the estate of the land, and to the person touching the land, for which cestui que trust has no remedy but by subpoena in Chancery." It is doubtful if this entirely clarifies the matter.

§ 171. Trustees

Any person capable of caring for property and transacting business may be made a trustee. In its origin it was largely a matter of honor and good faith, and the creator had literally to trust the trustee, in good faith, to carry out the trust. In those days the courts of common law did not undertake to compel a trustee to carry into effect his trust, nor would they punish him for breach of trust. It came about gradually that the courts of chancery or equity took jurisdiction of this matter and compelled a delinquent trustee to do his duty, or removed him when necessary, or held him liable for misfeasance or negligence. A reputation for honesty and fair dealing is still a qualification for the duties of a trustee, but now that the law holds trustees to stricter account, financial responsibility has become a prime requisite. For this reason corporations organized for the purpose, trust companies, and banking institutions, are largely used as trustees. Their advantages for this purpose are set forth more at length in Part V of this work.

1 Lewin on Trusts, quoted in Encyclopedia Britannica.

Where an estate is large, it is possible to get responsible men of business to act as trustees. In such cases they will open offices, organize employees, and handle the estate as an individual business. Where an estate is smaller, a trust company may be more satisfactory than a friend who cannot give it due attention without neglecting his own business.

A testamentary trustee must be of age, of sane mind, a resident of the state, not a felon, and not incompetent by reason of drunkenness, dishonesty, improvidence, or want of understanding.

§ 172. Testamentary Trustees

The statutory definition in New York 2 includes every person who is designated by a will or by any competent authority to execute a trust created by a will. It excepts from this an executor, an administrator with the will annexed, or a guardian. It includes, though, such an executor or an administrator when he is acting in a trust capacity that is separable from his functions as executor or administrator.

If property is left to a person with "precatory" words, that is, if the gift is accompanied by a wish that the legatee act in a certain way with the property or give part of it to someone else, in New York the gift is held by the courts to be absolute and the legatee is not a trustee and cannot be compelled to carry out the testator's wish; e.g., "Item fourth. It is my wish and desire that my said wife shall pay the sum of three hundred dollars a year to my sister-in-law." In another state similar language might be held to create an enforcible trust.

To create an enforcible trust, the simplest and most certain method is to express it in so many words: (1) “I give (describe the property)" (2) "to (designate the trustee who is to take the legal title)," then (3) add the words "in trust,"

"N. Y. Code Civ. Proc., § 2768, subdiv. 6.