JONES v. STOCKETT. 435

of trust; (h) or even where his co-trustees, there being several
others, had a great aversion to act with him, (i) The court may
also appoint a new trustee in the place of one who declines to act. (j)
But if the deed or will should even expressly clothe a trustee with
a discretionary power to appoint a new one, still the court will not
permit him to do so, without its sanction; it not being a sufficient
answer to say, that the court will take care to prevent the conse-
quences; the mischief is, in a great measure, done by the appoint-
ment; the necessity of getting back the legal estate. (k) The act
of assembly has provided, that if any person shall die, leaving real
or personal estate to be sold for any purpose, and shall not, by will,
or other instrument of writing, appoint a person as trustee to sell
or convey; or the person appointed shall die, or refuse to act, the
Chancellor may appoint a trustee for such purpose. (l) But
although a trustee, who had accepted the trust, may, by the con-
sent of most of the cestui que trusts, and with the sanction of the
court, because of his unwillingness to continue any longer in the
office, be discharged, and another appointed in his place; yet the
cestui que trusts must be fully apprised of his application to be dis-
continued, (m) And if it appears that the most interested, or
greater part of them are not then in being, or are incompetent to
consent, his request will not be gratified, since he cannot, by any
act of his own, without communication with his cestui que trusts,
denude himself of the character of trustee till he lias performed his
trust, (n)

Here, however, it does not appear that there is any just cause of
complaint against these trustees; and the trustee Wayman, having
voluntarily taken upon himself the trust, cannot now be permitted,
at his pleasure, to abandon it; and there is no one competent to
consent to his discharge on behalf of the infant plaintiff Larkin
Shipley and his issue, and the feme covert Ann Jones and her issue,
who are the principal, if not the only cestui que trusts.

The act of assembly declares, that in cases where trustees have
been appointed by last will and testament to execute any trust,
and any person interested in the execution thereof shall shew that

(h) Ex parte Phelps, 9 Mod. 357.—(t) Uvedale v. Ettrick, 2 Cha. Ca. 130.—-
( j) ————v. Roberts, 1 Jac. & Walk. 251.—(A;) Webb v. Shaftesbury, 7 Ves. 487 ;
Bayley v, Mansell, 4 Mad. 226; Southwell v. Ward, 5 Cond. Cha, Rep. 409.—
(1) 1785, ch. 72, s. 4.—(m) Rex v. Simpson, 3 Burr. 1467.—(n)'O'Keeffe v. Cal-
thorpe, 1 Atk. 18; Crewe v. Dicken, 4 Ves. 100; Chalmer v. Bradley, 1 Jac. &
Walk. 68.