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1998 SESSION
Be it enacted by the General Assembly of Virginia:
1. That §§ 26-48, 26-49 and 26-51 of the Code of Virginia are amended and reenacted as follows:
§ 26-48. Court may appoint trustee in place of one dead, resigned, etc.
When a trustee in a will, deed or other writing (1) (i)
dies, (2) (ii) becomes incapable of executing the
trust on account of physical or mental disability or confinement in prison,
(3) (iii) when residency is statutorily required, removes
beyond the limits of the Commonwealth, (4) (iv) declines
to accept the trust, (5) (v) having accepted, resigns the
same, as he may be allowed to do, (6) (vi) if such
trustee be is a corporation, be is
adjudicated a bankrupt, or for any reason lose loses its
charter, (vii) for any other reason ceases to be eligible to continue
serving as trustee, or (7) (viii) for any good
cause shown, the circuit court of the county, or the circuit,
corporation or other court of the city in which such will was admitted to
probate, or such deed or other writing is or might have been recorded, or if a
corporation, in which its principal office is located, or in which the trustee
resides, or the judge thereof in vacation, may on motion of any
party interested, and upon satisfactory evidence of such death, incapacity,
confinement, removal, declination, resignation, bankruptcy, loss of charter,
or other loss of eligibility or of such other good cause, appoint a
trustee or trustees in place of the trustee or trustees named in such
instrument.
Where the only courts of record in a city are a corporation court and a
circuit court and both have the same clerk, then each of said courts shall have
all the powers herein provided and any such decree or order of substitution
heretofore made by such city, corporation, or city circuit court is hereby
validated.
§ 26-49. Appointment by beneficiaries.
Except as provided in subdivision 9 of § 55-59, in any deed of trust, or
trust agreement, the maker or makers or grantor or grantors may grant to the
beneficiary or beneficiaries, or a majority in amount of the holders of the
obligations secured thereunder, the right and power to appoint a substitute
trustee or trustees, in event of the resignation, death, incapacity,
disability, removal or absence from the Commonwealth when residency is
statutorily required, of the trustee or trustees, or if the trustee
or trustees for any other reason cease to be eligible to continue
serving; provided, however, that if the trust
agreement so provides, substitution may be made at the discretion of the
beneficiary or beneficiaries for any reason whatsoever.
When such power is so granted the beneficiary may designate and appoint a
substitute trustee or trustees, in accordance with the deed of trust or other
instrument creating or granting the power of appointment, by an instrument duly
executed and acknowledged. When such instrument of appointment shall have
has been executed, the substitute trustee or trustees named
therein shall be vested with all the powers, rights, authority and duties
vested in the trustee or trustees in the original deed of trust or trust
agreement and, prior to or at the time of recordation of any instrument in
which such power, right, authority or duty is exercised, shall record such
instrument in the office of the clerk of the court wherein the original deed of
trust or trust agreement is recorded.
All acts done prior to July 1, 1970, in conformity with the provisions of this section, are hereby validated.
§ 26-51. Who to execute the trust until new trustee appointed.
Until such appointment is made under § 26-48, the personal representative
of a deceased sole trustee or of a deceased trustee who at the time of his
death was the only trustee qualified to act, or if there be
is more than one trustee, and one or more but less than all of them have
died, resigned, or become incapable of executing the trust on account of
physical or mental disability or confinement in prison or other institution, or
removed from the Commonwealth where residency is statutorily required, or
otherwise become ineligible to continue serving as trustee, or declined
to accept the trust, the remaining trustee or trustees, shall execute the
trust, or so much thereof as remained unexecuted at the death, removal,
ineligibility, declination, or resignation aforesaid, or at the time
such incapacity came into being (whether the trust subject be
is real or personal property) unless the instrument creating the trust
directs otherwise, or some other trustee be is appointed
for the purpose by a court of chancery having jurisdiction of the case. This
section and §§ 26-48 through 26-50 shall not apply to any case
provided for by § 55-29.