Wills — Construction — Mandatory or precatory words — Operation of business.
1. Where testator directed in his will that the trustee was to hold his estate and that testator's son was to continue the operation of the business, the language was mandatory and such provision allowed no discretion in the trustee as to the operation of the business; that was exclusively the duty of the son. [427]
Executors and administrators — Trusts and trustees — Duties — Degree of care — Removal — Surcharge — Appointment by will.
2. Where testator provided that the executor and trustee was to hold his estate but that testator's son should operate the business, and that the son should receive the income from the business during his life, and the son, without the knowledge of the trustee, embezzled money from the business but, upon learning of the same, the trustee immediately instituted proceedings which resulted in the recovery of all the misappropriated funds, with a substantial increase for the estate, it was held that the executor and trustee was not liable to surcharge or removal. [423-9]
3. All that is required of a trustee is common skill, common prudence and common caution, and he is not liable when he acts in good faith as others do with their own property. [427]
4. Removal or limitation of a fiduciary appointed by will requires much stronger proof of lack of capacity or fidelity than trustees appointed by the courts. [428]
5. Where there is no loss to any of the parties in interest, courts are reluctant to remove fiduciaries appointed by will. [428]
Argued April 14, 1938.
PER CURIAM, June 17, 1938:
The decree is affirmed on the opinion of Judge PATTERSON at appellants' cost.