MacEwen in re Appointment of Trustees of Kane Borough Park Lands

Citations

• 177 Pa. 638
• 35 A. 874
• 1896 Pa. LEXIS 1026

Syllabus

<p>Trusts and trustees — Appointment of trustee — Declaration of trusts— Amendment.</p> <p>A corporation and two individuals united in a declaration of trust by which it was declared that the corporation had conveyed certain lands to the two individuals to hold in trust for the borough of K. for park purposes, with power to convey the lands to the borough to be held on the same trusts. It was further provided “ that in case of death, resignation or refusal to act of either of said trustees, or of both of them, or any successor appointed as hereinafter stipulated, the remaining trustee for the time being, and so often as such vacancy shall occur, shall apply to said court by petition .... requesting the said court to nominate and appoint a suitable person to act with him in place of said trustee.” Both trustees died without having a trustee or trustees appointed, and without having executed the trust. K. was not incorporated as a borough until after the date of the execution of the deed. Subsequent^ the burgess and council of the borough petitioned the court for the appointment of trustees. The petition was allowed to be amended by the introduction of the following averment: “The borough of K. and inhabitants thereof, represented in this petition by the bui'gess and town council of said borough, are the eestuis que trust mentioned in said declaration ; the said borough of K. being the organized municipal corporation of territory and its inhabitants in said declaration mentioned as ‘ the borough of K. and the inhabitants thereof.’ ” Held (1) the amendment was properly allowed; (2) that the court had jurisdiction to appoint trustees as prayed for by the petition.</p>