§ 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.