N.Y. Estates, Powers & Trusts Law § 7-2.5: Suspension of powers of trustee in war service

§ 7-2.5 Suspension of powers of trustee in war service

(a) Whenever a trustee of an express trust is engaged in war service,

as defined in this section, such trustee or any other person interested

in the trust estate may present a petition to the supreme court or the

surrogate's court, as the case may be, to suspend the powers of such

trustee while he is so engaged and until the further order of the court,

and if the suspension of such trustee will leave no person acting as

trustee or leave a beneficiary of such trust as the only acting trustee

thereof, the petition must pray for the appointment of a successor

trustee, unless a successor has been named in the trust instrument and

is not engaged in war service or is not for any other reason unable or

unwilling to act as such trustee.

(b) For the purposes of this section, a trustee is engaged in war

service in any of the following cases:

(1) If he is a member of the armed forces of the United States or of

any of its allies, or if he has been accepted for such service and is

awaiting induction.

(2) If he is engaged in any work abroad in connection with a

governmental agency of the United States or with the American Red Cross

Society or any other body with similar objectives.

(3) If he is interned in any enemy country or is in a foreign country

or a possession or dependency of the United States and is unable to

return to this state.

(4) If he is a member of the Merchant Marine or similar service.

(c) Where the application is made by a trustee engaged in war service,

notice shall be given to such persons and in such manner as the court

may direct. Where the application is made by any other person interested

in the trust estate and the trustee is in the armed forces of the United

States, notice shall be given to such trustee in such manner as the

court may direct. In every other case, where the application is made by

a person other than the trustee, notice thereof shall be given to such

persons and in such manner as the court may direct.

(d) Upon the filing of the petition and proof of service of notice

prescribed in paragraph (c), the court may, notwithstanding any other

provision of law, suspend the trustee engaged in war service from the

exercise of all of his powers and duties while engaged in such service

and until the further order of the court. The order may further provide

that the remaining trustee or, if there is none, the successor named in

the trust instrument or appointed by the court may exercise all of the

powers and be subject to all of the duties of the original trustee.

(e) The successor trustee shall be limited to commissions as computed

under SCPA 2308 or 2309, whichever is applicable, upon income received

and disbursed and upon principal disbursed. Commissions may also be

allowed under 2308 or 2309 upon rents if he is authorized or required to

collect the rents of and manage real property. In case of the

resignation or removal of the suspended trustee, or in the event of such

trustee's death, the foregoing basis for computing the commissions shall

not apply and his commissions shall be computed in the same manner as

those of any other trustee.

(f) When the suspended trustee ceases to be engaged in war service he

may, upon application to the court and upon such notice as the court may

direct, be reinstated as trustee if any of the duties of such office

remain unexecuted. If the suspended trustee is reinstated the court

shall thereupon remove his successor and make such other order as

justice requires, but such removal shall not bar the successor from

subsequently qualifying as a trustee if for any reason it thereafter

becomes necessary to appoint a trustee.