In this uncontested miscellaneous proceeding, petitioners seek (1) permission for the co-petitioner bank to resign as trustee of three inter vivos trusts for the benefit of the three individual co-petitioners, respectively (the “Trusts”); and (2) appointment of each individual co-petitioner as successor trustee of one of the Trusts of which he or she is not a beneficiary. The combined value of the Trusts is $3.4 million.Pursuant to a trust agreement dated August 3, 1971, Grantor Allston Boyer gave his daughter a limited testamentary power of appointment over the principal of the trust created thereunder. In her will, admitted to probate in this court in 2007, the daughter exercised the power and directed that the principal be divided into three equal shares and held in separate trusts, each for the benefit of one of her then living children (the “individual petitioners”), respectively. Upon the death of each child, the principal of that child’s trust is distributable to that child’s issue.In her will, the daughter designated her three children as trustees “of any trusts created hereunder.” It is asserted in the petition that, at the time of the daughter’s death in 2007, the individual petitioners assumed that the testamentary designations did not apply to the Trusts, which were created by the daughter as Grantor’s agent under the trust agreement rather than as a testator disposing of her own property under the will. Nevertheless, according to the petition, the individual petitioners took the precaution of executing renunciations of “any right…to be appointed as trustees of the [Trusts].” Pursuant to the trust agreement, the co-petitioner bank has been serving as the sole trustee of the Trusts since the daughter’s death.Although the trust agreement authorizes the individual petitioners “to designate and appoint individuals…to act as successor Trustees hereunder,” they have asked for a court order appointing them. They make the request on the premise that the above-described renunciations may preclude them from serving as trustees of the Trusts absent leave of court to do so.The terms of the trust agreement do not provide for resignation where, as here, there is no currently serving co-trustee. However, in the absence of such a provision a court will allow a trustee to resign where such relief will serve the trust’s best interests (see SCPA 715; Matter of Daverin, NYLJ, Nov. 2, 1998, at 29, col 5 [Sur Ct, Nassau County 1998]). Here, resignation is sought primarily to achieve an economy for the Trusts by eliminating corporate fees. Accordingly, the petition’s request that the co-petitioner bank be given leave to resign is granted.The request for appointment of the individual petitioners as described in the petition is also granted (SCPA 1502). Their renunciations years ago of “any right” to serve as trustees of the Trusts do not preclude such appointments, since the individual petitioners have never had such a “right,” whether under the daughter’s will or under the trust agreement.Based on the foregoing, the application is granted in its entirety.Submit decree.Dated: March 25, 2019
