A court of equity never allows a trust to fail for want of a trustee ; King v. Donnelly, 5, Paige, Ch. (N. Y.) 46 ; Vidal v. Girard's Ex'rs, 2 How. (U. S.) 188, 11 L. Ed. 205 ; Seda v. Huble, 75 Ia. 429, 39 N. W. 685, 9 Am. St. Rep. 495.
Whenever it becomes necessary, the court. will appoint a new trustee, and this though the instrument creating the trust contain no power for making such appointment. The power is inherent in the court ; Suarez v. Pumpelly, 2 Sandf. Ch. (N. Y.) 336 ; 1 Beay. 467 ; In re Inhabitants of Anson, 85 Me. 79, 26 Atl. 996. So the court may create a new trustee on the resignation of a trustee; Cruger v. Halliday, 11 Paige, Ch. (N. Y.) 314; Craig v. Craig, 3 Barb. Ch. (N. Y.) 76 ; Hill, Trust. 190. A court will not allow a trust to fail or to be defeated by the refusal or neg lect of the trustee to execute a power, if such a power is so given that it is reasonably cer tain that the donor intended it to be exercis ed ; Atwood v. R. Co., 85 Va. 966, 9 S. E. 748.
The power of equity to remove a trustee and to substitute another in his place is incidental to its paramount duty to see that trusts are properly executed, and may prop erly be exercised whenever his continuance in office would be detrimental to the trust, and even if for no other reason than that human infirmity would prevent the co-trus tees or their beneficiaries from working in harmony, and although charges against him are either not made out or are greatly ex aggerated; May v. May, 167 U. S. 310, 17 Sup. Gt. 824, 42 L. Ed. 179 ; • and this power is independent of statute or of any provision in the trust instrument ; Mazelin v. Rouyer, 8 Ind. App. 27, 35 N. E. 303; St. Louis v. Wenneker, 145 Mo. 230, 47 S. W. 105, 68 Am. St. Rep. 561; Williamson v. Suydam, 6 Wall. (U. S.) 723, 18 L. Ed. 967; Balti more Bargain House v. St. Clair, 58 W. Va. 565, 52 S. E. 660.
A trustee may be removed for cause: As for neglect to invest the funds ; Cavender v. Cavender, 114 U. S. 464, 5 Sup. Ct. 955, 29 L. Ed. 212 ; and using them in his own busi ness ; Clemens v. Caldwell, 7 B. Mon. (Ky.) 171; for fraud, negligence or willful breach of trust ; Thompson v. Thompson, 2 B. Mon. (Ky.) 161; for converting to his own use the profit on a change of stock and the right to purchase new shares ; Billings v. Billings, 110 Mass. 225; mingling trust funds with his own funds and refusing information to the beneficiaries ; Sparhawk v. Sparhawk, 114 Mass. 356 ; neglecting to keep the funds invested, hut mingling them with his own funds and expending them in an unauthor ized manner, though done through ignorance ; Deen v. Cozzens, 7 Rob. (N. Y.) 178 ; for bad faith and gross neglect in failing to sell real estate and invest the proceeds ; Haight v. Brisbin, 100 N. Y. 219, 3 N. E. 74 ; for loaning trust funds on personal securities al though approved by some of the benefici aries ; Johnson's Appeal, 9 Pa. 416 ; for act
ing adversely to the interest of the bene ficiary and resisting his proper demands; Dickerson v. Smith, 17 S. C. 289.
A trustee may be removed where the re lations between the trustee and beneficiaries have become hostile ; Wilson v. Wilson, 145 Mass. 490, 14 N. E. 521, 1 Am. St. Rep. 477 ; where there is antipathy on the part of one of the beneficiaries towards one of the two trustees, deep-seated and destructive of mutu al confidence ; In re Nathans' Estate, 191 Pa. 404, 43 Atl. 313; where the beneficiary and another were trustees and there was an ir reconcilable antagonism between them due to the domineering conduct of the co-trustee ; In re Myer's Estate, 205 Pa. 413, 54 Atl. 1093; where the relations between the trus tee and the beneficiary had become so acri monious as to make personal intercourse be tween them impossible and hinder the trans action of the business ; In re Price's Estate, 209 Pa. 210, 58 Atl. 280 (where a charge made by the trustee against the beneficiary that she was the mother of an illegitimate child was held good ground); where the relations between a trustee and his co-trustees were such that they could probably not co-operate, and a majority of the trustees asked a re moval; Quackenboss v. Southwick, 41 N. Y. 117 ; where two of the trustees and the bene ficiary prayed the removal of a third trustee, it appearing that questions had arisen among the trustees and the beneficiary sympathized with the two, she being of mature age ; In re Morgan, 63 Barb. (N. Y.) 621, affirmed 66 N. Y. 618 ; where it appeared that by reason of disagreement between trustees their con tinuance in office would be detrimental to the estate ; Russak v. Tobias, 12 Civ. Proc. R. (N. Y.) 390 ; where the widow was a testa mentary trustee with another for her step daughter and she had remarried and given up intercourse with her step-daughter and had caused much litigation concerning the estate ; Polk v. Linthicum, 100 Md. 615, 60 Atl. 455, 69 L. R. A. 920 ; where a state of mutual ill-will or hostile feelings exists against a trustee who has discretionary pow er over the rights of the beneficiary and they are necessarily brought into personal inter course; McPherson v. Cox, 96 U. S. 404, 24 L. Ed. 746 ; where the relations between the trustee and the beneficiary were not cordial and the trust was solely for a married wo man of age sufficient to understand her own interest, the trustee was removed, no fault on the trustee's part being shown, on com plaint of the beneficiary that his management was improvident; In re Chapman, 2 N. Y. Supp. 248. Whether a trustee who has left the administration of the trust entirely in the hands of an acting trustee is removable or not will depend upon the conduct of the acting trustee ; Lathrop v. Smalley's Ex'rs, 23 N. J. Eq. 192.