Ellis v. Boston, Hartford and Erie Rairoad Company. J. G. Abbott, (J. P. Healy with him,) for the trustees. CHAPMAN, C. J. The questions presented on this hearing relate merely to the validity of the assignments which have been made of the mortgage executed by the company to Berdell, Gregory and Davis, dated March 19, 1866. The mortgage was made in trust to secure the bonds of the company to the amount of twenty millions of dollars, to be thereafter issued. The mortgage is in form an indenture, the trustees being called the parties of the second part. The conveyance is made to have and to hold "unto the said parties of the second part and the survivor of them, and his and their successors and assigns forever, on the trusts, and for the uses and purposes herein declared, and none other." One of the "terms, conditions and agreements" upon which the conveyance is made is as follows : "Second. That in the case of the death, resignation or removal of one of said trustees, the premises hereby conveyed, and the trusts hereby created, shall vest in the survivors or survivor, who shall thereupon appoint in writing, by deed, a person or persons in the place and stead of the trustee or trustees so deceased, resigned or removed, and such appointment and the acceptance thereof shall vest the said premises and trusts in the person so appointed, jointly with the trustee so appointing, as fully as if such appointment had been originally made in this deed; and all subsequent vacancies happening in said trust shall be filled in like manner and with like effect, by the trustee in each case remaining. And in case of the decease, removal or resignation of all of said trustees, the vacancies may be filled by any judge of the supreme court of the state of Connecticut, on application of any party interested, on such notice to the other parties interested as the judge acting shall order; and the trustees so appointed and accepting shall become vested with all the franchises and estate hereby conveyed, on recording or lodging a certified copy of the order for their appointment in all places where this mortgage is required by law to be recorded or lodged." On February 27, 1867. Berdell by an instrument in writing resigned his trust, and by indenture of October 28, 1867, between Ellis v. Boston, Hartford and Erie Railroad Company. Gregory, Davis and John S. Eldridge, the latter is appointed trustee as successor to Berdell, and they convey to him the inter est in the property which had before belonged to Berdell. On December 31, 1868, by an instrument under seal and acknowledged, Davis and Gregory each resigned his trust, and assigned all his right, title and interest in the property to Eldridge. On August 16, 1869, by indenture between Eldridge of one part, and Mark Healey and Henry N. Farwell of the second part, he appointed the latter his co-trustees, and assigned to them a joint interest in the property. On March 16, 1870, Healey and Farwell, by an instrument of that date, under seal and acknowledged, resigned their trust, and assigned their interest in the property to Eldridge; and on the same day, by indenture between Eldridge of one part and Thomas Talbot and Moses Kimball of the other part, reciting all the prior appointments and resignations, he appoints them his co-trustees, and assigns to them a joint interest in the property. On the same day, by an instrument under seal and acknowledged, Eldridge resigned his trust, and assigned to Talbot and Kimball all his interest in the property. On July 25, 1870, by indenture between Talbot and Kimball of one part, and Avery Plumer of the second part, they appointed him co-trustee with them, and assigned to him a joint interest in the property. The question submitted to the court is, whether Talbot, Kimball and Plumer are now the trustees and hold the legal title to the mortgaged property. It is obvious from the foregoing recital, that the resignations, appointments and conveyances have all been made in conformity with the terms of the mortgage. The clause above cited authorizes any of the trustees to resign at his pleasure. It provides that upon such resignation the trusts shall vest in the survivor or survivors. When Berdell resigned, he made no conveyance to the survivors. But such conveyance was not required by the terms of the instrument, and it is well settled that the person who creates the trust may mould it in whatever form he pleases, and may therefore provide that on the occurrence of certain events Ellis v. Boston, Hartford and Erie Railroad Company. and the fulfilment of certain conditions, the original trustee may retire, and a new one be substituted. Lewin on Trusts, (5th ed.) 459. It is also well settled that a disclaimer of a trust by one of Beveral trustees vests the estate in the remaining trustees without any express provision of the will or deed, and in that class of cases, where a vacancy results from the incapacity of the trustee or his removal from the country, the necessity of the case and the want of power to compel a conveyance requires the court to recognize the power of the remaining trustee to convey to his cotrustee without a conveyance from the retiring trustee. Cape v. Bent, 9 Jur. 653. O'Reilly v. Alderson, 8 Hare, 101. Mennard v. Welford, 1 Sm. & Gif. 426. Eaton v. Smith, 2 Beav. 236. Cooke v. Crawford, 13 Sim. 91. In re Moravian Society, 26 Beav. 101. The estate created by the mortgage is in legal effect an estate in joint tenancy in three trustees, determinable either by death, resignation or removal; and limited over, upon the happening of either event, to the survivors, until they shall appoint a new trustee, and convey to him so as to vest the estate jointly in themselves and the new trustee. The appointment of new trustees has been by the survivors or survivor while in office, so that it is not like the cases where an appointment by a retiring trustee of a successor in his own place has been held invalid. It has been done as the instrument directs, and a proper conveyance has been made to each new trustee. In the cases where it has been held invalid, the execution has not conformed to the power. The question has been suggested, whether Eldridge, Farwell and Healey were competent to act as trustees for the bondholders, they being at the time officers of the corporation. This fact cannot affect their capacity to hold and pass the title, which is the only question now before us; for the individuals who are officers are distinct from the corporation itself, and may make contracts with it, make conveyances to it, and receive conveyances from it; and, in general, all persons are competent to be trustees. On the whole, we can see no ground to doubt that the present trustees have been legally appointed, and that their title to the Ellis v. Boston, Hartford and Erie Railroad Company. trust property is valid. It is obvious that the contingency which would authorize an application to the supreme court of the state of Connecticut has never arisen, there never having been a va cancy of all the trustees at any one time. Title of the present trustees declared valid. On September 30, 1870, the Adams Express Company filed a petition, which set forth that on April 1, 1869, the petitioners entered into an indenture with the Boston, Hartford & Erie Railroad Company, which provided that the petitioners should transport their express matter or freight over the railroad of that corporation, and the lines leased and operated by it, and it should give them the necessary facilities therefor; that the petitioners should credit the Boston, Hartford & Erie Railroad Company, as its share of the proceeds of the business, with forty per cent. of the gross receipts, with certain deductions, and the remaining sixty per cent. of the gross receipts should be retained by the petitioners as their share in the proceeds of the business; that the petitioners should lend and advance to the Boston, Hartford & Erie Railroad Company the sum of $200,000, for which they should receive its note or notes, with the pledge of 10,000 shares of their capital stock as collateral security for the repayment of the $200,000 with interest; "that the forty per cent. of the gross receipts herein above allotted to" the Boston, Hartford & Erie Railroad Company "may be credited when due upon said. notes, and shall, to the extent of such credit, discharge the same, and when such credits shall amount to the said sum of $200,000 and interest so to be advanced, then the said notes and the 10,000 shares of the capital stock shall be surrendered to" the Boston, Hartford & Erie Railroad Company, and the petitioners "shall thereafter pay monthly in cash to" the Boston, Hartford & Erie Railroad Company "its share of the gross receipts as hereinbefore provided;" that the contract should continue in force unti the $200,000 and interest to be advanced should be wholly repaid, "whether during the term hereinafter fixed as a limit to this contract, or not; " and that the contract should continue for five years from its date. Ellis v. Boston, Hartford and Erie Railroad Company. The petition further alleged that the petitioners faithfully fulfilled all their part of the agreement and advanced the $200,000 to the Boston, Hartford & Erie Railroad Company; that there remained due upon the $200,000, on the principal $104,762, and for interest $12,582; that the stock given as collateral security was worth not more than $58,000; and that the receivers had notified the petitioners that they did not regard the contract as binding upon them, and would terminate it on the first day of October next. The prayer was, that the receivers might carry out and comply with all the terms of the contract, in the same manner and to the same extent as they were being carried out by the Boston, Hartford & Erie Railroad Company before the appointment of the receivers. The receivers answered, admitting the making of the contract, requiring proof, if material, that the petitioners had performed their part of it, alleging that it was grossly unconscionable, and denying that they were bound by it. The matter was referred to a master, who reported that the contract was just and fair, and that the petitioners had performed their part thereof. The case was reserved by Gray, J., on the petition, answer and master's report, for the determination of the full court, such order or decree to be entered as justice and equity might require. B. R. Curtis, & C. A. Seward (of New York), for the petitioners. The receivers stand in all respects in place of the railroad company. Jefferys v. Dickson, Law Rep. 1 Ch. 183, 190. Receivers v. Paterson Gas Light Co. 3 Zabr. 283. Hyde v. Lynde, 4 Comst. 387. Devendorf v. Beardsley, 23 Barb. 656. Bell v. Shibley, 33 Barb. 610. coln v. Fitch, 42 Maine, 456. of the assignees of a bankrupt, who take the bankrupt's estate subject to all the equities which affect him. Ridout. Brough, Cowp. 133. Mitford v. Mitford, 9 Ves. 87, 100. Brown v. Heathcote, 1 Atk. 160. Ex parte Stephens, 11 Ves. 24. Clason v. Morris, 10 Johns. 524, 540. Murray v. Lylburn, 2 Johns. Ch. 441. Mumford v. Murray, 1 Paige, 620. Smith v. Kane, 2 Paige, 303. Van Epps v. Van Deusen, 4 Paige, 64. Ex parte Curtis v. Leavitt, 15 N. Y. 9. Lin- |