Page:Federal Reporter, 1st Series, Volume 7.djvu/540

 528 FEDEIiAIj BEFOBTBB. �" Nothing but a case of pressing necessity and imminent probability of great danger from delay, will justify a court of equity in divesting a trustee of his trust until he has hsd an opportunity of answering." High on Injunction, } 14. " It may properly be observed in the outset that courts are averse to the disjDlacement by a receiver of a trustee under an express trust unless for good cause sliown. Upon a blll flled by the cestui que trust against a testamentary trustee, seeking an account of his trust, and a receiver to take charge of the property ad interim, the only ground for relief which the court will consider is whether the trust estate is likely to be wasted before the termination of the litigation ; and when this i» not shown, the alleged bad habits of the trustee, and his unflt- neas to execute the trust devolved upon him by the testator's will, are not sufflcient to warrant a court of equity in the exercise of its extra- ordinary powers by the appointment, of a receiver." High on Receivers, a 693, 695. �In Orpkan Asylum v. McCarter, 1 Hopk. Ch. 429, it waa held that where a trustee had mingled the trust fund with hia own private funds it was not sufficient ground for the ap- pointment of a receiver, it not being shown that the fund waa in danger. �A careful examination of the authorities, we believe, will show that it is the impending danger to the trust fund which induces the court to interpose with these extraordinary rem- edies in the case of an express trust, where a trustee has failed to take possession of the trust property, and has allowed it to remain in the hands of the debtor, who may dispose of it at any moment, or where he is about to part with it in a fraud- ulent manner, so that it will be lost to the trust estate, or where the trustee is clearly proven tohave been guiltyof acts of fraud, so that the fund is not safe in his hands for any length of time. There are cases where the protection of the property may call for these summary remedies. �In Jones v. Dougherty, 10 Ga. 273, 288, cited by the com- plainant's counsel as parallel to the case under consideration, the trustees bad never taken possession of the trust property, but had allowed it to be used and disposed of by the debtor, the administrator of the debtor being also about to sell a por- tion of the estate in another state. The court observe : �" And do not the allegations in the bill establish conclusively that the trust fund was in the most imminent danger of being entirely wasted or placed beyond the reach of the cestui que trust .' * * * He allowed the assigner, from the time of the execution of the deed to the period of ��� �