by John Marshall Harlan

“ It is contended by the appellants that the general term cannot exercise any jurisdiction in equity unless (1) a suit or proceeding or motion be ordered by the court holding the special term, to be heard by the general term in the first instance; or (2) a motion be filed in a suit that by the rules of the general term is designated as an enumerated motion; or (3) an apeal by a party aggrieved be taken from an order, judgment, or decree of the special term which involves the merits of the action or proceeding. ”

“ It may be that the surviving trustee, under the broad powers of sale given by the will, could, in his discretion, have sold this property, if he had not surrendered his position as trustee, and if the title had not, by the decree of the court, been taken out of him. And it may be that it was competent for him, while holding the trusteeship, to transfer to some one else, by a written instrument, the powers the will gave him, but he had not exercised any such powers prior to the decree of March 29, 1882, divesting him of title, and substituting Green in his place as trustee. ”

“ And the same principle must control the right of Green to appeal. It cannot be said that his right to commissions as trustee constitutes the whole matter in dispute between him and the appellees. He claims, as trustee, the right to hold and control the proceeds of the sale made to Kenaday. The order removing him as trustee involves his ownership and control of the trust-estate for the objects expressed in the will, and therefore the value of that estate is the value of the matter in dispute for the purposes of an appeal by him. ”