Testamentary Trustee: Appointment by Court
Trusts and Trustees
There are two views on this subject. Some commentators have stated that the power of the trustee flows from the will, while others insist that it is the court's decree which effectuates the trusteeship. Even in Newhall, Settlement of Estates & Fiduciary Law in Massachusetts, Lawyers Co-operative Publishing Co. (Fourth Edition, 1958), §407 the author has vacillated on the subject. Here's what was written in the text of the parent volume:
There is some difference of opinion as to whether [the trustee] is appointed by the testator or the court. In favor of the latter view is the fact that he qualifies by filing a petition on a form approved by the Supreme Judicial Court, and containing a prayer that he be appointed trustee; and the court enters a decree to the effect that he has been appointed trustee, and issues him a letter of appointment.
In the earlier editions of this book I inclined to the view just expressed. Consideration of some of the recent cases, however, and a reconsideration of the earlier law, have led me to take the other view, namely, that the trustee is appointed by the will rather than by the court, and that the forms in ordinary use are without justification in law.
However, the author shifts back to the original position in the supplement, and states:
The case of Mahoney v. Mahoney 5 Mass.App. 720, 370 N.E.2d 1011 (1977) , confirmed the probate court's decree that the testator's widow who was named by him as the trustee under his will should not be appointed since she could not be relied upon to act fairly and dispassionately in the administration of the trust and also lacked knowledge and competence to undertake the duties of trustee. Accordingly, the author's theory expressed in the text that the trustee is appointed by the will and merely qualifies before the court by filing his bond appears inconsistent with the Mahoney case.
The rule as to testamentary trustees seems to be consistent with the position expressed in the supplement to Newhall, namely that it is the court's decree which appoints the trustee and not the will. The case of Coates v. Lunt, 213 Mass. 401, 100 N.E. 829 (1913) seems to suggest otherwise, but the court in that case observed that although the trustees had not been appointed by the probate court that they nonetheless had been appointed as executors and "there would have been a remedy upon their bonds" in that capacity.