L. 1909, ch. 45 Future Estates, Charitable Uses, etc. § 19 the creditor of the deceased debtor has placed his claim in judgment does not preclude him from bringing an action under the present section. Rosselle v. Klein, (1899) 42 App. Div. 316, 59 N. Y. S. 94. Action to set aside fraudulent transfer by representative.-The provision of the present section, authorizing a creditor of a decedent to maintain an action to set aside a fraudulent transfer, applies only when the transfer is made by the decedent himself; it does not authorize an action to set aside an alleged fraudulent transfer by a representative of the decedent. Magoun v. Quigley, (1906) 115 App. Div. 226, 100 N. Y. S. 1037. See also Agne v. Schwab, (1908) 123 App. Div. 746, 108 N. Y. S. 487. Right to disaffirm chattel mortgage.-A creditor of an insolvent deceased debtor may under the present section sue to set aside a chattel mortgage given by the decedent in fraud of creditors. Boshart v. Kirley, (1901) 34 Misc. 241, 69 N. Y. S. 623, .affirmed 67 App. Div. 624, 74 N. Y. S. 1121. Procedure on recovery by a creditor of decedent. The statute contemplates that the property recovered in an action by a creditor of an insolvent debtor to set aside a fraudulent transfer shall either be administered by the court for the benefit of all creditors of the decedent, or paid into the Surrogate's Court, to be there administered according to law. Where no letters of administration have been issued on the estate of the decedent, and consequently there is no proceeding pending in the Surrogate's Court, it is proper for the trial court to hold and administer the fund, but an interlocutory judgment should be entered directing the appointment of a referee to advertise for and take proof of the claims of creditors and report thereon. Continental Nat. Bank v. Moore, (1903) 83 App. Div. 419, 82 N. Y. S. 302. Judgment setting aside assignment as to single creditor as binding upon creditors not parties.— It has been held that a judgment setting aside an assignment for the benefit of creditors as against a particular creditor of a deceased debtor has no effect upon other creditors not parties to the action. As to them the assignment remains valid and binding, and the court may in their behalf compel an accounting by the assignee. In re Thoesen, (1901) 62 App. Div. 87, 70 N. Y. S. 924. Necessity to creditor's action of legal representative of deceased. The power of a creditor of a deceased insolvent debtor to sue under the present section does not depend upon the existence of a legal representative of the deceased, or his refusal to act. Lilienthal v. Drucklieb, (1899) 92 Fed. 753, 34 C. C. A. 657, modifying decree 80 Fed. 562; National Bank of the Republic v. Thurber, (1902) 39 Misc. 13, 78 N. Y. S. 766. If a representative of the estate of a deceased debtor has been appointed he is a proper party to an action by a creditor of the decedent to set aside a fraudulent transfer made by him in his lifetime, but where it appears that no personal representative has been appointed, and that the debtor died without property, a personal representative of the deceased debtor is not a necessary party to the action. Johnston v. Gundberg, (1906) 113 App. Div. 228, 98 N. Y. S. 1015. Necessity of demand upon executor to sue as prerequisite to creditor's action. A creditor of a deceased insolvent debtor may, on behalf of himself and other creditors, bring an action to set aside a fraudulent transfer of personal property made by the deceased in his lifetime, without first requesting the executor to bring the action. Calkins v. Stedman, (1911) 146 App. Div. 202, 130 N. Y. S. 932; National Bank of the Republic v. Thurber, (1902) 39 Misc. 13, 78 N. Y. S. 766. Rule under prior statute.- Prior to the amendment of 1889, which gave a creditor the power to sue in his own right, the rule was that he might sue to avoid fraudulent transfers where the executor, administrator or assignee for creditors was hostile and neglected or refused to sue. See Spelman v. Freedman, (1892) 130 N. Y. 421, 29 N. E. 765, affirming 54 Hun 409, 7 N. Y. S. 698; Ft. Stanwix Bank v. Leggett, (1873) 51 N. Y. 552; Bate v. Graham, (1854) 11 N. Y. 237; In re Moulton, (1890) 57 Hun 589, 10 N. Y. S. § 20 Future Estates, Charitable Uses, etc. L. 1909, ch. 45 717; Swift v. Hart, (1885) 35 Hun 128; Lowery v. Clinton, (1884) 32 Hun 367; Gardner v. Lansing, (1882) 28 Hun 413; Tradesmen's Nat. Bank v. Young, (1897) 15 App. Div. 109, 44 N. Y. S. 297. § 20. When trust vests in supreme court. On the death of a last surviving or sole surviving trustee of an express trust, the trust estate does not pass to his next of kin or personal representative, but, if the trust be unexecuted, in the absence of a contrary direction on the part of the person creating the same, it vests in the supreme court and shall be executed by some person appointed by the court, whom the court may invest with all or any of the powers and duties of the original trustee or trustees. The beneficiary or beneficiaries of the trust shall have such notice as the court may direct of the application for the appointment of such person; and the person so appointed shall give such security as the court may require, and shall be subject to the same requirements of law as to accounting and as to the administration of the trust as apply to testamentary trustees; and shall be entitled to such compensation for his services by way of commissions as may be fixed by any court which has power to pass upon his final account,1 which shall in no case exceed that now allowed by law to executors and administrators, besides his just and reasonable expenses in the matter in which he is appointed. This section was derived from the Personal Property Law of 1897, § 3, as amended by L. 1902, ch. 150, § 1. It was amended to read as above by L. 1911, ch. 217. The amendment is given in the footnote. When estate of trustee ceases: see REAL PROPERTY LAW, § 109. Power of surrogate to appoint trustee to execute unexecuted testamentary trust: see Code Civ. Pro., § 2638. Vesting of trust on death of trustee.- Under the present section an express trust, upon the death of the trustee, vests in the Supreme Court and not in the executors of the trustee. Williams v. Fischlein, (1911) 144 App. Div. 244, 129 N. Y. S. 129. Extent of jurisdiction. Upon an application for the appointment of a trustee under the present section the court has jurisdiction only to inquire whether the deceased trustee was at the time of his death engaged in the execution of an apparent trust, and whether that trust remains in any respect unexecuted; if these facts appear it is the duty of the court to make the appointment. It may not determine questions involving the rights and interests of the various parties interested, as they are affected by the validity, extent and character of the trust, or the right of possession of the property alleged to be so held. Matter of Waring, (1885) 99 N. Y. 114, 1 N. E. 310. See also Matter of Guental, (1904) 97 App. Div. 530, 90 N. Y. S. 138. 1 Words " may be fixed by any court which has power to pass upon his final account" substituted for the words "the court appointing him shall determine." L. 1909, ch. 45 Future Estates, Charitable Uses, etc. § 20 Power of court to appoint new trustee. Strictly speaking the court has no power to appoint a new trustee upon the death of a surviving trustee. An appointee under the present section is simply the agent of the court to carry out the unexecuted trust. Wildey v. Robinson, (1895) 85 Hụn 362, 32 N. Y. S. 1018; Brater v. Hopper, (1894) 77 Hun 244, 28 N. Y. S. 472; Matter of Guental, (1904) 97 App. Div. 530, 90 N. Y. S. 138; Jewett v. Schmidt, (1903) 83 App. Div. 276, 82 N. Y. S. 49. See also Whitehead v. Draper, (1909) 132 App. Div. 799, 117 N. Y. S. 539. Effect of inaccurate designation of name of substitute trustee.-An inaccurate designation of the name by which the substitute trustee is to be known does not invalidate the order of appointment. Wetmore v. Wetmore, (1899) 44 App. Div. 52, 60 N. Y. S. 437. Power to appoint without bringing beneficiaries into court.- Unlike the similar provision in the Real Property Law (§ 111) the present section does not make the bringing of the beneficiary into court a condition precedent to the power of the court to appoint a substitute trustee; consequently the court may appoint upon such notice as it may under the circumstances require. Matter of Earnshaw, (1909) 196 N. Y. 330, 89 N. E. 825, reversing Erland v. House, etc., Co., (1909) 131 App. Div. 915, 115 N. Y. S. 1119, and holding that the court had jurisdiction to appoint a substitute trustee upon the petition of the persons entitled to the income of the trust estate during their lives, without requiring notice to be given to the remaindermen who were the children of the petitioners. See also in this connection Faile v. Crawford, (1898) 30 App. Div. 536, 52 N. Y. S. 353; Tompkins v. Moseman, (1881) 5 Redf. 402. Appointment of new trustee as concluding personal representative of deceased trustee from impeaching trust.-The beneficiary of an alleged trust may, under the present section, have a new trustee appointed in place of a deceased trustee, upon a prima facie case showing that personal property in the hands of the administrator of the trustee was either held by the decedent at his decease as trustee for the petitioner, or was the proceeds of the trust estate. Such appointment will not conclude the legal representative of the decedent's estate from contesting the existence of the trust, or from claiming that the property belonged to the decedent. Matter of Carpenter, (1892) 131 N. Y. 86, 29 N. E. 1005. Measure of compensation to substitute trustee. It was held in Whitehead v. Draper, (1909) 132 App. Div. 799, 117 N. Y. S. 539, that a fair measure of compensation to a substitute trustee appointed by the Supreme Court. under the present section was commissions at half the statutory rates, not only upon the moneys which came into his hands originally, but also upon the moneys which he received in the course of his administration in the Liquidation of securities which he originally received, and which, as principal of the fund, he was bound to reinvest. Surrogate's jurisdiction to compel accounting of substituted trustee.—The Surrogate's Court has the right and power to entertain or compel proceedings for the judicial settlement of the accounts of trustees appointed by the Supreme Court as successors to testamentary trustees. Matter of Runk, (1911) 200 N. Y. 447, 94 N. E. 363, reversing 138 App. Div. 789, 123 N. Y. S. 523, and overruling Matter of Leavitt, (1909) 135 App. Div. 7, 119 N. Y. S. 769. Effect upon present section of § 3320 of Code of Civil Procedure. The provisions of the present section were not repealed when the addition to section 3320 of the Code of Civil Procedure was made, making a general rule for the allowance of commissions to all trustees; nor is it required that the rule laid down in the present section for fixing compensation of a trustee appointed by the Supreme Court as its agent to execute a trust which § 21 Future Estates, Charitable Uses, etc. L. 1909, ch. 45 has devolved upon it should be applied by the surrogate in allowing commissions to a trustee appointed by him to execute an unexecuted testamentary trust. In re Silliman, (1910) 67 Misc. 27, 124 N. Y. S. 622. Section as applicable to assignees for benefit of creditors. The present section does not apply to general assignments for the benefit of creditors. Upon the death of such an assignee his personal representative is entitled, upon giving a proper bond, to be made the substituted assignee. Matter of Magnus, (1893) 2 Misc. 347, 22 N. Y. S. 70, affirmed (1893) 137 N. Y. 630 mem., 33 N. E. 745. Statute as retroactive. It was held in Schluter v. Bowery Sav. Bank, (1888) 13 N. Y. St. Rep. 413, judgment affirmed (1889) 117 N. Y. 125, 22 N. E. 572, 15 A. S. R. 494, 5 L. R. A. 541, 26 N. Y. St. Rep. 922, reargument denied 49 Hun 607 mem., 1 N. Y. S. 655, 16 N. Y. St. Rep. 784, that chapter 185 of the Laws of 1882, from which the present section was originally derived, was not retroactive in its operation. Cited. The statute embodied in the present section was cited in Beaver v. Beaver, (1891) 16 N. Y. S. 476, 746, 62 Hun 194, 41 N. Y. St. Rep. 607, order reversed (1893) 137 N. Y. 59, 32 N. E. 998, 50 N. Y. St. Rep. 69. It was cited in Matter of Hecht, (1893) 71 Hun 62, 24 N. Y. S. 540, in connection with the question of the appointment of a substitute trustee by the surrogate under section 2638 of the Code of Civil Procedure. § 21. Investment of trust funds. A trustee or other person holding trust funds for investment may invest the same in the same kind of securities as those in which savings banks of this state are by law authorized to invest the money deposited therein, and the income derived therefrom, and in bonds and mortgages on unincumbered real property in this state worth fifty per centum more than the amount loaned thereon. A trustee or other person holding trust funds may require such personal bonds or guaranties of payment to accompany investments as may seem prudent, and all premiums paid on such guaranties may be charged to or paid out of income, providing that such charge or payment be not more than at the rate of one-half of one per centum per annum on the par value of such investments. But no trustee shall purchase securities hereunder from himself. This section was derived from the Personal Property Law of 1897, § 9, as amended by L. 1902, ch. 295, § 1, and L. 1907, ch. 669, § 1. Authorized investments by savings banks: see BANKING LAW, § 239. Executors' and trustees' investments in certain stocks regulated: see REAL PROPERTY LAW, § 116. Loan by trustee to wife.-A trustee cannot loan the trust fund to his wife on bond and mortgage. Matter of Randolph, (1911) 134 N. Y. S. 1117. Effect of unauthorized investments upon rights of trustees inter se.— - The statute authorizes investment by trustees in certain securities, but it does not expressly prohibit other investments by them, so as to make unauthorized investments tortious and deny to them remedies on account thereof as between themselves. Steele v. Leopold, (1909) 135 App. Div. 247, 120 N. Y. S. 569. Continuing investment made by testator.-Testamentary trustees are not justified, in the absence of express authority under the will, to continue investments made by the testator, which they would not themselves have the right L. 1909, ch. 45 Future Estates, Charitable Uses, etc. §§ 22,23 to make under the statute. Matter of Keane, (1916) 95 Misc. 25, 160 N. Y. S. 200; Cannon v. Quincy, (1909) 65 Misc. 399, 121 N. Y. S. 752; Matter of Avery, (1904) 45 Misc. 529, 92 N. Y. S. 974. Unauthorized investments as cause for removal of executor.-Although an executor has made unauthorized investments of a testator's estate in mortgages outside the state, it is no ground for revoking his letters where it appears that the estate has suffered no loss thereby and his accounts have been judicially settled. Matter of Burr, (1907) 118 App. Div. 482, 104 N. Y. S. 29, reversing 48 Misc. 56, 96 N. Y. S. 225. It was held, however, in Matter of Avery, (1904) 45 Misc. 529, 92 N. Y. S. 974, that where there was evidence of such a degree of carelessness or wantonness on the part of a foreign corporation acting as executor of a New York estate in the matter of the investment of the trust fund in mortgage securities, as amounted to misconduct in the execution of its office and in fidelity to its trust, its letters should be revoked. Cited. This section was cited in the case of In re Horwitz, (1915) 90 Misc. 249, 154 N. Y. S. 316; Waydell v. Hutchinson, (1911) 146 App. Div. 448, 131 N. Y. S. 315; Op. Atty.-Gen. (1902) 204. § 22. Commissions of trustees. Any trustee, under a deed of trust to sell personal property for the benefit of creditors, shall be entitled to and allowed upon an accounting the same commissions as an assignee for the benefit of creditors. This section was derived from L. 1896, ch. 249, § 1. Analogous provision of Real Property Law: see REAL PROPERTY LAW, § 117. § 23. Revocation of trusts upon consent of all persons interested. Upon the written consent of all the persons beneficially interested in a trust in personal property or any part thereof heretofore or hereafter created, the creator of such trust may revoke the same as to the whole or such part thereof, and thereupon the estate of the trustee shall cease in the whole or such part thereof. New. Added by L. 1909, ch. 247. When estate of trustee ceases: see REAL PROPERTY LAW, § 109. Rule of revocability.- Under the present section a trust in personal property is revocable by the creator thereof upon the consent of all persons in being who are beneficially interested therein, and, if there is no person in being who has either a vested or contingent interest in the trust, the revocation is effectual. Cram v. Walker, (1916) 173 App. Div. 804, 160 N. Y. S. 486. Section as retroactive. The present section is retroactive in its operation and applies to trusts created before its enactment. Goodwin v. Broadway Trust Co., (1914) 87 Misc. 130, 149 N. Y. S. 1033; Cruger v. Union Trust Co., (1916) 173 App. Div. 797, 160 N. Y. S. 480; Whittemore v. Equitable Trust Co., (1914) 162 App. Div. 607, 147 N. Y. S. 1058; Sperry v. Farmers' Loan, etc., Co., (1913) 154 App. Div. 447, 139 N. Y. S. 192; Haskin v. Long Island Loan, etc., Co., (1910) 139 App. Div. 258, 123 N. Y. S. 494, affirmed (1911) 203 N. Y. 588, 96 N. E. 1116. Test determining beneficial interest. The test by which to determine who are and who are not " persons beneficially interested" in a trust estate, as |