permits his co-trustee to take the entire management of it, and the possession and control of the trust property, is equally with him liable to account. And in Virginia, if property be conveyed to trustees, to secure the payment of the debts of certain creditors of the grantor, and the grantees accept the trust and undertake to dispose of the property, notwithstanding any agreement between themselves as to which shall take charge of and be accountable for particular portions, they are all jointly responsible to the creditors for the proper application of the whole property."

§ 464. Liability of Sureties on Assignee's Bond.-The liability of the sureties on the assignee's bond is ordinarily regulated by the statute requiring the giving of the bond. Ordinarily, the sureties on the bond stand in no better position than their principal. The measure of his responsibility is the measure of theirs, and where, by a final decree upon the account of an assignee, he is directed to pay the claims of a specific creditor, his sureties are liable for default of payment, and cannot defend on the ground that they were not bound by the decree."

Where the bond given under the statute was conditioned for the faithful discharge of the duties of the assignee, and for the due accounting for all moneys received by the assignee, it was held in a case in New York that the accounting referred to was an accounting to creditors under the assignment, and that where the assignment had been set aside as fraudulent, and judgment creditors entitled to the funds in the hands of the assignee, were unable to collect them, there was no liability created by the bond in favor of

1

'Royall's Adm'r v. McKenzie, 25 Ala. 364.

* Miller v. Holcombe's Ex'r, 9 Gratt. 665.

'Patterson's Appeal, 48 Penn. St. 342. But where the statute provided that when the assignee fails to make payment of the trust fund on demand, he should pay interest at the rate of twenty per cent. per annum, in a suit brought upon the official bond, for breach of condition, it was held that the action sounded in tort, and the measure of damages was the demand and interest at six per cent. State v. Hart, 38 Mo. 44.

4 Little v. Commonwealth, 48 Penn. St. 337.

1

such creditors against the sureties. Where the assignee attempts to defend an action on the bond, on the ground that he has faithfully discharged his duties under the assignment, and that creditors had not presented their claims, they must allege and show that they were ready and willing to receive the claims, and that one or more meetings were called for that purpose, of which the creditors had notice."

In a case in Ohio, a creditor was allowed to recover on the assignee's bond the proportionate amount of his claim to the whole amount of those claims which had been presented and allowed pursuant to the statute.

In New Jersey, after the damages, have been assessed against an assignee and his sureties, on their bond, the surety cannot have the amount of a creditor's claim deducted therefrom, on the ground that it was not presented to the assignee under oath, where such claim was allowed and included in all of the assignee's accounts and no creditor objects thereto. He is bound to answer for all the money found due from his principal.

A new trustee cannot, by virtue of his appointment, sue upon the bond of his predecessor for a breach thereof.5

'People v. Chalmers, 1 Hun, 683.
"Morrill v. Richardson, 9 Pick. 84.

'Lahm v. Johnston, 32 Ohio St. 590.

'In Re Stelle, 34 N. J. Eq. 199.

'Thompson v. Childress, 1 Tenn. Ch. (Cooper), 369.

CHAPTER XLI.

PROCEEDINGS IN CASE OF THE DEATH, REMOVAL, NON-ACCEPTANCE, RESIGNATION, MISCONDUCT, INSOLVENCY, OR INCAPACITY OF AN ASSIGNEE.

§ 465. In case of Death.-Where there are several assignees, and one dies, the execution of the trust devolves (in the absence of any special provision to the contrary) upon the survivors. In Connecticut it is provided by statute, that if any trustee of an estate assigned for the benefit of creditors, not being a sole trustee, die, the court of probate, may, in its discretion, unless the assignment shall otherwise provide, appoint another trustee in his stead, who shall be associated with the other trustee or trustees, in the same manner as was the trustee so dying; and if the court shall not so appoint, the other trustee shall complete the execution of the trust. In Pennsylvania it is provided by statute, that in case of the death of one or more of several trustees, the survivors or survivor and remaining trustees shall have and exercise all the title and authority which the whole might have done, unless the trust or power conferred shall require the whole number to act; in which case the vacancies shall be filled by the courts having jurisdiction. In a case in Mississippi, where a corporation assigned all its property to two trustees, to be held by them,

2

8

1 Stewart v. Pettus, 10 Mo. 755; Shook v. Shook, 19 Barb. 653; Hannah v. Carrington, 18 Ark. 85; see Hill on Trustees, 303, and note. In New York, every estate vested in trustees as such, is held by them in joint tenancy. 3 Rev. Stat. (7th ed.) 2179, § 44; see Belmont v. O'Brien, 12 N. Y. 394; Brennan v. Willson, 71 N. Y. 502; s. c. 4 Abb. N. C. 279. As to the rights of a surviving trustee against the estate of a deceased co-trustee, see Hart v. Bulkley, 2 Edw. Ch. 70. 2 Gen. Stat. (Rev. 1875), p. 381, § 14.

Act of May 3, 1855, § 2; Laws of 1855, p. 415; Purdon's Dig. (Brightley, 10th ed.) p. 1426, pl. 72.

* Id. ibid.; and see the act of June 14, 1836, § 23; Purdon's Dig. (Brightley, 10th ed.) p. 1418, pl. 23.

"and the survivors of them, and the heirs, executors, administrators and assigns of such survivor," in trust for the payment of the debts of the corporation, and after the trust had been accepted by the trustees, one of them died, and the corporation and the surviving trustee (A. J.) executed a new deed, by which they assigned to the surviving trustee and one G. R. all the property embraced in the original deed, to be held by them for the same uses and subject to the same trusts specified in the original deed, which latter trust was accepted by A. J. and G. R.-it was held that the original deed gave the power of assignment to the surviving trustee, and that the title of A. J. and G. R. as trustees was valid in law.1

3

If a sole assignee die before the trust be finally executed, the court having jurisdiction either appoints a new assignee,* or selects and empowers some other person to discharge the duties of the trust. The administrator of a deceased assignee is not bound to assume the supervision of the trust property, or to be legally responsible for its administration. In Connecticut, under the statute regulating assignments, if a sole assignee dies, the court of probate appoints another assignee in his stead. In Pennsylvania, the court of common pleas appoints a new assignee, on application of any person interested in the property, and after due notice to all parties concerned.5

In Illinois, if any assignee dies before the closing of his trust, it is the duty of the county judge, on application, to appoint some discreet and qualified person to execute the trust, who, on giving bond, succeeds to all the powers and duties of his predecessor.

'Peck v. Ingraham, 28 Miss. 246.

22 Tuck. Com. [458] 446, p. 44.

Bowman v. Raineteaux, Hoff. Ch. 150; see the New York statute, post, pp. 711, 712, 715.

Gen. Stat. (Rev. 1875), p. 363, § 68.

'Act of June 14, 1836, §§ 23, 24; Purdon's Dig. (Brightley, 10th ed.) p. 1418, pl. 23, 24.

A similar provision exists in Oregon, Wisconsin, and Texas.3 In New Jersey, it is provided by the statute regulating assignments, that if the assignee or assignees who have been appointed and have given surety, according to the provisions of the act, should die before the final settlement of the estate, it shall be lawful for the surety to proceed to final settlement, and perform every duty which the assignee or assignees could rightfully have performed, having first given additional security for the faithful performance of the trust. And that in case the surety should die, or reasonable objections be made by the creditors against his acting, or he should refuse to act, the orphans' court shall proceed to appoint some suitable person or persons to settle the estate. In Maine, if any assignee dies, resigns, becomes insane, or otherwise unsuitable to perform the trust, refuses or neglects so to do, or mismanages the trust property, the judge of probate for the county, after due notice, shall appoint another in his place, who shall have the same powers and be subject to the same liabilities as the original assignee.

66

6

In Rhode Island,' the death of the assignee makes a vacancy in the office," within the meaning of the statute,8 and a new trustee thereunder can be appointed on petition as well as on bill filed; but this would not be so independ ent of statute, the proceeding by bill being the proper form.

In New York, it is provided by "An act in relation to trustees of personal estates" that, "upon the death of a surviving trustee of an express trust, the trust estate shall not descend to his next of kin or personal representatives, but the trust, if unexecuted, shall vest in the supreme court, with

Act of 1879, c. 53, p. 57; appendix to R. S. (1879), p. 7, § 14.

Rev. Stat. (ed. 1878), p. 39, § 14.

Id. p. 40, § 15.

Rev. Stat. (ed. 1871), p. 545, c. 70, § 7; see p. 32, ante.

Petition of Ballou, 11 R. I. 359.

Pub. Stats. (1882), c. 178.