TRUSTEE. A person in whom some estate, interest, or power in or affecting pro perty of any description is vested for the benefit of another.
One to whom property has been conveyed to he held or managed for another.
2. To a certain extent, executors, adminis trators, guardians, and assignees are trustees, and the law of. trusts so far is applicable to them in their capacity of trustees. Hill, Trust. 49.
Trusts are not strictly cognizable at com mon law, but solely in equity. 16 Pet. 25.
A trustee after having accepted a trust cannot discharge himself of hie trust or re Fpcnsibility by resignation or a refusal to perform the duties of the trust ; but he must procure his discharge either by virtue of the provisions of the instrument of his appoint ment, or by the consent of all interested, or by an order of' a competent court. 4 Kent, Comm. 311 ; 11 Paige, Ch. N. Y. 314.
Trustees are not allowed to speculate with the trust-preperty, or to retain any profits made by the use of the same, or to become the purchasers upon its sale. If beneficiel to the parties in interest, the purchase by the trustee msy be retained or confirmed by the court. And the trustee may be compelled to Recount for and pay cm er to the cestui que trust all profits made by any use of the trust property. 4 Kent, Comm. 438 ; 2 Johns. Ch. N. Y. 252 ; 4 How. 503.
A court of' equity never allows a trust to fail for want of a trustee. 5 Paige, Ch. N. Y. 46 . 6 Whart Penn. 571 ; 5 B. Monr. Ky. lla.
3. Whenever it becomes necessary, the court will appoint a new trustee, and this though the instrument creating the trust contain rib power for making such appoint. ment. The power is inherent in the court. 7 Yee. Ch. 480 ; 2 Sa,udf. Ch. N. Y. 336 ; 1 Beav. Rolls, 467. So the court may create a new trustee on the resignation of the former trustee. 11 Paige, Ch. N. Y. 314 ; 3 Barb. Ch. N. Y. 76 ; Hill, Trust. 190.
The mere naming a person trustee does not constitute him such. There must be an acceptance, express er implied. But if' the person named trustee does not wish to be held responsible as such, lie should, before meddling with the duties of a trustee, for wally disclaim the trust. 7 Gill & J. Md. 157;
1 Pick. Mass. 370 ; Hill, Trust. 214.
Ordinarily, no writing is neoessary to con stitute the acceptance of even a trust in writing. 12 N. H. 432.
4. The office and duties of trustees being matters of personal confidence, they are not allowed to delegate these powers unless such a power is expressly given by the authority by which they were created ; and where ene of several trustees dies, the trust, as a gene ral rule, in the United States, will devolve on the survivor, and not on the eirs of the deceased. Hill, Trust. 175 ; 2 Mull. Ch. 276; 3 Mer. Ch. 412 ; 11 Paige, Ch. N. Y. 314.
While the law allows any person named as trustee to disclaim or renounce, he cannot, if he has by any means accepted and entered upon the trust, rid himself of the duties and responsibilities after such acceptance, except by a legal discharge by competent authority.
4 Johns. Ch. N. Y. 136 ; 11 Paige, Ch. N. Y. 314 ; 1 Mylne & K. Ch. 195.
6. The trustee is in law generally regarded as the owner of the property, whether the same be real or personal. Hill, Trust. 229. Yet this rule is subject to noaterial qualifica tions when taken in connection with the doctrines of powers and uses, and the legisla tion of the several states. 2 Atk. Ch. 223 ; 1 How. 134 ; 4 Kent, Comm. 321 ; Cruise, Dig. tit. 12, c. 1, 25 ; Sugden, Pow. 174, 6th ed.; Hill, Trust. 229-239.
The quality and continuance of the estate of a trustee will be determined by the pur pose and exigeiacy of the trust, rather than by the phraseology employed in the descrip, tion of the estate conveyed ; and, therefore, if the language be that the estate goes te the trustee end his heirs, it may be limited to a shorter period if thereby the purposes of tilt, creation of the trust are satisfied., 8 Hare, Ch. 156 ; 4 Den. N. Y. 385 ; 2 Exch. 593 ; 11 B. Monr. Ky. 233.