7New trustees, appointment of

##### 7. New trustees, appointment of (1) Where a trustee, whether original or substituted, and whether appointed by the Court or otherwise, — (a) is dead; or (b) remains out of the State for more than one year without having properly delegated the execution of the trust; or (c) seeks to be discharged from all or any of the trusts or powers reposed in or conferred on him; or (d) refuses to act therein; or (e) is unfit to act therein; or (f) is incapable of acting therein; or (g) is an infant; or (h) being a corporation, has ceased to carry on business, is in liquidation or is dissolved, then the person nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person or no such person able and willing to act, then the surviving or continuing trustee or trustees for the time being, or the personal representatives of the last surviving or continuing trustee, may by writing appoint a person or persons, whether or not being the person or persons exercising the power, to be a trustee or trustees in the place of the trustee first in this subsection mentioned. (2) On the appointment of a trustee or trustees for the whole or any part of the trust property — (a) where the number of trustees originally appointed was less than 4, 2 or more trustees may be appointed in place of a trustee being replaced under this section, but so that after any appointment the number of trustees shall not exceed 4; and (b) a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part, and whether or not new trustees are or are to be appointed for any other part of the trust property; and any existing trustee may be appointed or remain one of the separate set of trustees; or if only one trustee were originally appointed, then one separate trustee may be so appointed for the part of the trust first in this paragraph mentioned; and (c) it shall not be obligatory to appoint more than one new trustee where only one trustee was originally appointed, or to fill up the original number of trustees where more than 2 trustees were originally appointed; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section unless there will remain either a trustee corporation or at least 2 individuals to act as trustees to perform the trust; and (d) any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees shall be executed or done. (3) Where a trustee has been removed under a power contained in the instrument creating the trust, a new trustee or new trustees may be appointed in the place of the trustee who is removed, as if he were dead, or, in the case of a corporation, as if the corporation had been dissolved, and the provisions of this section shall apply accordingly. (4) The power of appointment given by subsection (1) or any similar previous enactment to the personal representative of the last surviving or continuing trustee is and shall be deemed always to have been exercisable by the executor for the time being, whether original or by representation, of that surviving or continuing trustee who has proved the will of his testator or by the administrator for the time being of that trustee without the concurrence of any executor who has renounced or has not proved; but a sole or last surviving executor intending to renounce has, or all the executors where they all intend to renounce have, and shall be deemed always to have had power, at any time before renouncing probate, to exercise the power of appointment given by this section or by any similar previous enactment if willing to act for that purpose and without thereby accepting the office of executor. (5) Where, in the case of any trust, there are not more than 3 trustees (none of them being a trustee corporation), then — (a) the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust; or (b) where there is no person nominated for the purpose of appointing new trustees by the instrument creating the trust, or no such person able and willing to act, then the trustee or trustees for the time being, may, by writing, appoint a person or persons (whether or not being the person or persons exercising the power) to be an additional trustee or additional trustees, but it shall not be obligatory to appoint any additional trustee unless the instrument (if any) creating the trust, or any statutory enactment, provides to the contrary; but on any appointment of additional trustees under this subsection the number of trustees shall not be increased beyond 4, where 4 or fewer trustees were originally appointed, or beyond the original number of trustees, where more than 4 were originally appointed. (6) Every new trustee appointed under this section has the same powers, authorities, and discretions and may in every respect act, as if he had originally been appointed a trustee by the instrument (if any) creating the trust, both before and after all the trust property becomes by law or by assurance or otherwise vested in him. (7) The provisions of this section that are brought into effect by the circumstance that a person nominated trustee (whether sole or otherwise) in a will is dead are brought into effect whether the death of that person occurred before or after the death of the testator; and the provisions relative to a continuing trustee relate also to a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (8) The provisions of this section relating to a person nominated for the purpose of appointing new trustees apply whether the appointment is made in a case specified in this section or in a case specified in the instrument (if any) creating the trust, but where a new trustee is appointed under this section in a case specified in that instrument, the appointment shall be subject to the terms applicable to an appointment in that case under the provisions of that instrument. (9) In this section, the term trustee does not include a personal representative as such.