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Evangelical Lutheran Church of the Epiphany v. Rabell

126 N.Y.S. 306 Court N.Y. App. Div. Decision date 1910-12-23 English

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p. 306
EVANGELICAL LUTHERAN CHURCH OF THE EPIPHANY v. RABELL et al.
(Supreme Court, Appellate Division, First Department.
December 23, 1910.)

Headnote

Trusts (§ 169*)—Appointment of New Trustee—Collateral Attack.
Where the court exercised its power to appoint a substituted trustee, and exercised its discretion whether he should give security, the validity of the appointment and the power of the trustee under it was not open to collateral attack, and a title tendered by the substituted trustee was marketable.
[Ed. Note.—For other cases, see Trusts, Dec. Dig. § 169.*]
Submission of controversy on agreed facts between the Evangelical Lutheran Church of the Epiphany and Charles F. Rabell and another.
Judgment for defendants.
Argued before INGRAHAM, P. J., and LAUGHLIN, MILLER, McLaughlin, and howling, jj.
C. S. Harris, for plaintiff.
B. E. Rabell, for defendants.

We think the court had power to appoint a substituted trustee, and the question whether or not he should give security was a matter resting in the discretion of the court under the law as it then existed. The court having exercised that discretion, the validity of the appointment and the power of the trustee under it was not open to collateral attack.

We think, therefore, that the title tendered by deed from the substituted trustee was a marketable title, and the plaintiff was bound to. accept it.

Judgment ordered for defendants, with costs.