RULE 98

whom the trust estate shall vest in like manner as if he had

been originally appointed by such court.

Trustees
Section 1. Where trustee appointed. A trustee necessary to
carry into effect the provisions of a will on written
instrument shall be appointed by the Court of First Instance in
which the will was allowed, if it be a will allowed in the
Philippines, otherwise by the Court of First Instance of the
province in which the property, or some portion thereof,
affected by the trust is situated.
Section 2. Appointment and powers of trustees under will.
Executor of former trustee need not administer trust. If a
testator has omitted in his will to appoint a trustee in the
Philippines, and if such appointment is necessary to carry into
effect the provisions of the will, the proper Court of First
Instance may, after notice to all persons interested, appoint a
trustee who shall have the same rights, powers, and duties, and
in whom the estate shall vest, as if he had been appointed by
the testator. No person succeeding to a trust as executor or
administrator of a former trustee shall be required to accept
such trust.
Section 3. Appointment and powers of new trustee under written
instrument. When a trustee under a written instrument
declines, resigns, dies or removed before the objects of the
trust are accomplished, and no adequate provision is made in
such instrument for supplying the vacancy, the proper Court of
First Instance may, after due notice to all persons interested,
appoint a new trustee to act alone or jointly with the others,
as the case may be. Such new trustee shall have and exercise
the same powers, right, and duties as if he had been originally
appointed, and the trust estate shall vest in him in like
manner as it had vested or would have vested, in the trustee in
whose place he is substituted and the court may order such
conveyance to be made by the former trustee or his
representatives, or by the other remaining trustees, as may be
necessary or proper to vest the trust estate in the new
trustee, either or jointly with the others.
Section 4. Proceedings where trustee appointed abroad. When
land in the Philippines is held in trust for persons resident
here by a trustee who derives his authority from without the
Philippines, such trustee shall, on petition filed in the Court
of First Instance of the province where the land is situated,
and after due notice to all persons interested, be ordered to
apply to the court for appointment as trustee; and upon his
neglect or refusal to comply with such order, the court shall
declare such trust vacant, and shall appoint a new trustee in

Section 5. Trustee must file bond. Before entering on the

duties of his trust, a trustee shall file with the clerk of the
court having jurisdiction of the trust a bond in the amount
fixed by the judge of said court, payable to the Government of
the Philippines and sufficient and available for the protection
of any party in interest, and a trustee who neglects to file
such bond shall be considered to have declined or resigned the
trust; but the court may until further order exempt a trustee
under a will from giving a bond when the testator has directed
or requested such exemption and may so exempt any trustee when
all persons beneficially interested in the trust, being of full
age, request the exemption. Such exemption may be cancelled by
the court at any time and the trustee required to forthwith
file a bond.
Section 6. Conditions included in bond. The following
conditions shall be deemed to be part of the bond whether
written therein or not;
(a) That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time of
the making of such inventory shall have come to
his possession or knowledge;
(b) That he will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the will of
the testator or the provisions of the instrument
or order under which he is appointed;
(c) That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused therefrom in any year by the court, a true
account of the property in his hands and the
management and disposition thereof, and will
render such other accounts as the court may order;
(d) That at the expiration of his
settle his account in court and
deliver all the estate remaining in
due from him on such settlement, to
persons entitled to thereto.

trust he will
pay over and
his hands, or
the person or

But when the trustee is appointed as a successor to a prior

trustee, the court may dispense with the making and return of

an inventory, if one has already been filed, and in such case

the condition of the bond shall be deemed to be altered
accordingly.
Section 7. Appraisal. Compensation of trustee. When an
inventory is required to be returned by a trustee, the estate
and effects belonging to the trust shall be appraised and the
court may order one or more inheritance tax appraisers to
assist in the appraisement. The compensation of the trustee
shall be fixed by the court, if it be not determined in the
instrument creating the trust.
Section 8. Removal or resignation of trustee. The proper
Court of First Instance may, upon petition of the parties
beneficially interested and after due notice to the trustee and
hearing, remove a trustee if such removal appears essential in
the interest of the petitioner. The court may also, after due
notice to all persons interested, remove a trustee who is
insane or otherwise incapable of discharging his trust or
evidently unsuitable therefor. A trustee, whether appointed by
the court or under a written instrument, may resign his trust
if it appears to the court proper to allow such resignation.
Section 9. Proceedings for sale or encumbrance of trust estate.
When the sale or encumbrance of any real or personal estate
held in trust is necessary or expedient, the court having
jurisdiction of the trust may, on petition and after due notice
and hearing, order such sale or encumbrance to be made, and the
re-investment and application of the proceeds thereof in such
manner as will best effect the objects of the trust. The
petition, notice, hearing, order of sale or encumbrance, and
record of proceedings, shall conform as nearly as may be to the
provisions concerning the sale or imcumbrance by guardians of
the property of minors or other wards.
Art. 1440. A person who establishes a trust is called the
trustor; one in whom confidence is reposed as regards property
for the benefit of another person is known as the trustee; and
the person for whose benefit the trust has been created is
referred to as the beneficiary.
Art. 1441. Trusts are either express or implied. Express trusts
are created by the intention of the trustor or of the parties.
Implied trusts come into being by operation of law.
Art. 1442. The principles of the general law of trusts, insofar
as they are not in conflict with this Code, the Code of
Commerce, the Rules of Court and special laws are hereby

adopted.

CHAPTER 2
EXPRESS TRUSTS
Art. 1443. No express trusts concerning an immovable or any
interest therein may be proved by parol evidence.
Art. 1444. No particular words are required for the creation of
an express trust, it being sufficient that a trust is clearly
intended.
Art. 1445. No trust shall fail because the trustee appointed
declines the designation, unless the contrary should appear in
the instrument constituting the trust.
Art. 1446. Acceptance by the beneficiary is necessary.
Nevertheless, if the trust imposes no onerous condition upon
the beneficiary, his acceptance shall be presumed, if there is
no
proof
to
the
contrary.

CHAPTER 3
IMPLIED TRUSTS
Art. 1447. The enumeration of the following cases of implied
trust does not exclude others established by the general law of
trust, but the limitation laid down in Article 1442 shall be
applicable.
Art. 1448. There is an implied trust when property is sold, and
the legal estate is granted to one party but the price is paid
by another for the purpose of having the beneficial interest of
the property. The former is the trustee, while the latter is
the beneficiary. However, if the person to whom the title is
conveyed is a child, legitimate or illegitimate, of the one
paying the price of the sale, no trust is implied by law, it
being disputably presumed that there is a gift in favor of the
child.
Art. 1449. There is also an implied trust when a donation is
made to a person but it appears that although the legal estate
is transmitted to the donee, he nevertheless is either to have
no beneficial interest or only a part thereof.

Art. 1450. If the price of a sale of property is loaned or paid

by one person for the benefit of another and the conveyance is
made to the lender or payor to secure the payment of the debt,
a trust arises by operation of law in favor of the person to
whom the money is loaned or for whom its is paid. The latter
may redeem the property and compel a conveyance thereof to him.
Art. 1451. When land passes by succession to any person and he
causes the legal title to be put in the name of another, a
trust is established by implication of law for the benefit of
the true owner.
Art. 1452. If two or more persons agree to purchase property
and by common consent the legal title is taken in the name of
one of them for the benefit of all, a trust is created by force
of law in favor of the others in proportion to the interest of
each.
Art. 1453. When property is conveyed to a person in reliance
upon his declared intention to hold it for, or transfer it to
another or the grantor, there is an implied trust in favor of
the person whose benefit is contemplated.
Art. 1454. If an absolute conveyance of property is made in
order to secure the performance of an obligation of the grantor
toward the grantee, a trust by virtue of law is established. If
the fulfillment of the obligation is offered by the grantor
when it becomes due, he may demand the reconveyance of the
property to him.
Art. 1455. When any trustee, guardian or other person holding a
fiduciary relationship uses trust funds for the purchase of
property and causes the conveyance to be made to him or to a
third person, a trust is established by operation of law in
favor of the person to whom the funds belong.
Art. 1456. If property is acquired through mistake or fraud,
the person obtaining it is, by force of law, considered a
trustee of an implied trust for the benefit of the person from
whom the property comes.
Art. 1457. An implied trust may be proved by oral evidence.

EMILIA O'LACO and HUCO LUNA v. VALENTIN CO CHO CHIT, O LAY KIA
and CA
G.R. No. 58010 | March 31, 1993 | BELLOSILLO
FACTS:
1. Emilia O'Laco and respondent O Lay Kia are half-sisters
2. May 31, 1943 Philippine Sugar Estate Development Company,
Ltd., sold a parcel of land1 with the Deed of Absolute Sale
naming O'Laco as vendee; thereafter, Transfer Certificate of
Title No. 66456 was issued in her name.
3. May 17, 1960 spouses Valentin Co Cho Chit and O Lay Kia
(spouses Valentin) learned from the newspapers that O'Laco
sold the same property to the Roman Catholic Archbishop of
Manila for P230,000.00, with assumption of the real estate
mortgage constituted thereon.
4. June 22, 1960 spouses Valentin sued spouses Emilia O'Laco
and Hugo Luna (spouses Hugo) to recover the purchase price
of the land before CFI of Rizal.
a. Spouses Valentin: Emilia O'Laco knew that they were
the real vendees of the Oroquieta property sold in
1943 by Philippine Sugar Estate Development Company,
Ltd., and that the legal title thereto was merely
placed in her name.
i. Emilia O'Laco breached the trust when she sold
the land to the Roman Catholic Archbishop of
Manila.
ii. Asked the trial court to garnish all the
amounts still due and payable to spouses Hugo
arising from the sale, which was granted on 30
June 1960.
b. Spouses Hugo:deny the existence of any form of trust
relation.
i. O'Laco actually bought the property with her
own money
ii. she left the Deed of Absolute Sale and the
corresponding title with spouses Valentin
merely for safekeeping;
iii. when OLaco asked for the return of the
documents evidencing her ownership, spouses
Valentin told her that these were misplaced or
lost; hence, she filed a petition for issuance
of a new title. On August 18, 1944 the CFI
Manila granted her petition.
5. CFI Rizal, September 20, 1976 finding no trust relation
between the parties, dismissed the complaint together with
the counterclaim.
6. Petitioners and respondents appealed.
7. CA, April 9, 1981 (ipapanganak na si Azy nito, hehehe)
reversed TC decision. MR denied. Appealed to SC.

1 Lot No. 5, Block No. 10, Plan Psu-10038, situated at Oroquieta St., Sta. Cruz, Manila

CONTENTION OF SPOUSES HUGO (PETITIONERS):

1. The complaint fails to allege that earnest efforts toward a
compromise were exerted considering that the suit is between
members of the same family, and no trust relation exists
between them.
2. Spouses Valentin are already barred by laches
ISSUE:
1. WON
the
2. WON
3. WON

there was effort on the side of spouses Hugo to settle

controversy - YES
there was an implied trust - YES
laches came in - NO

HELD: YES!!!
RATIO:
1. Procedural -- Contention no. 1
a. The complaint must show that there were efforts
towards compromise, pursuant to Art. 222 of the New
Civil Code2, or a motion to dismiss could have been
filed under Sec. 1, par. (j), Rule 16, of the Rules
of Court.
b. An attempt to compromise as well as the inability to
succeed is a condition precedent to the filing of a
suit between members of the same family.
c. But plaintiff may be allowed to amend his complaint
to correct the defect if the amendment does not
actually confer jurisdiction on the court in which
the action is filed, i.e., if the cause of action was
originally within that court's jurisdiction.
d. Spouses Valentin did not formally amend their
complaint. They were allowed to introduce evidence
purporting to show that earnest efforts toward a
compromise had been made.3 Hence, the complaint was
deemed
accordingly
amended
to
conform
to
the
evidence.
e. If the defendant permits evidence to be introduced
without objection and which supplies the necessary
allegations of a defective complaint, then the

2 Superseded by the Family Code, I didnt try to look for the exact provision: No suit shall
be filed or maintained between members of the same family unless it should appear that
earnest efforts toward a compromise have been made, but that the same have failed,
subject to the limitations in Article 2035.

evidence is deemed to have the effect of curing the

defects of the complaint.
2. (ISSUE NO. 2) Substantial existence of trust relations
a. Trust relations between parties may either be express
or implied.
i. Express trusts are those which are created by
the direct and positive acts of the parties,
by some writing or deed, or will, or by words
evincing an intention to create a trust.
ii. Implied trusts are those which, without being
express, are deducible from the nature of the
transaction as matters of intent, or which are
superinduced on the transaction by operation
of law as matters of equity, independently of
the particular intention of the parties.
b. Implied
trusts
may
either
be
resulting
or
constructive trusts, both coming into being by
operation of law.4
i. Resulting trusts are based on the equitable
doctrine that valuable consideration and not
legal title determines the equitable title or
interest and are presumed always to have been
contemplated by the parties.
1. They
arise
from
the
nature
or
circumstances
of
the
consideration
involved in a transaction whereby one
person thereby becomes invested with
legal title but is obligated in equity
to hold his legal title for the benefit
of another.
ii. Constructive
trusts
are
created
by
the
construction of equity in order to satisfy the
demands
of
justice
and
prevent
unjust
enrichment.
1. They arise contrary to intention against
one who, by fraud, duress or abuse of
confidence, obtains or holds the legal
right to property which he ought not, in
equity and good conscience, to hold.
c. Express trusts concerning immovables or any interest
therein cannot be proved by parol evidence. Implied
trusts may be established by oral evidence.
i. In order to establish an implied trust in real
property by parol evidence, the proof should
be as fully convincing as if the acts giving
rise to the trust obligation were proven by an

3 That is, O Lay Kia pressed O'Laco for the transfer of the title of the Oroquieta
property in the name of spouses Valentin, just before OLacos marriage to
Hugo. But, instead of transferring the title as requested, Emilia sold the
property to the Roman Catholic Archbishop of Manila. This testimony was not
objected to by spouses Hugo.

4 Specific examples of resulting trusts may be found in the Civil Code, particularly Arts.
1448, 1449, 1451,1452 and 1453, 23 while constructive trusts are illustrated in Arts.
1450, 1454, 1455 and 1456.

authentic document. It cannot be established

upon vague and inconclusive proof.
3. (APPLICATION OF NO. 2) There is a resulting trust was indeed
intended by the parties under Art. 1448 of the NCC:
a. As stipulated by the parties, the document of sale,
the owner's duplicate copy of the certificate of
title, insurance policies, receipt of initial premium
of insurance coverage and real estate tax receipts
ware all in the possession of respondent spouses
which they offered in evidence. As per O Lay Kia, the
reason why these documents of ownership remained with
her is that the land in question belonged to her.
i. The only possible reason for these documents
to be possessed by the spouses Valentin for 17
years after the purchase of the property in
1943 is OLaco only held the property for the
former.
b. Before
buying
the
property,
spouses
Valentin
purchased another property situated in Kusang-Loob,
Sta. Cruz, Manila, where the certificate of title was
placed in the name of Ambrosio O'Laco, older brother
of Emilia, under similar or identical circumstances.
i. Spouses Valentin: The reason why they did not
place these properties in their name was that
being Chinese nationals at the time of the
purchase they did not want to execute the
required affidavit to the effect that they
were allies of the Japanese.
1. Spouses Valentin even filed an action
for reconveyance against Ambrosio when
he claimed the Kusang-Loob property as
his own, which they won.
2. Ambrosio O'Laco filed a case against the
Anti-Dummy Board, because of this, there
was an implied admission by Ambrosio
that his sister Emilia, like him, was
merely used as a dummy.
c. The circumstances by which O'Laco obtained a new
title by reason of the alleged loss of the old title
then in the possession of spouses Valentin cast
serious doubt on the veracity of her ownership.
i. The petitions respectively filed by Emilia and
Ambrosio for both properties were both granted
on the same day by the CFI of Manila.
1. It
really
looks
that
there
was
conspiracy between the siblings to
defraud and deprive spouses Valentin of
their properties.
d. Until the sale of the contested property to the Roman
Catholic Archbishop of Manila, Emilia O'Laco actually
recognized the trust.

i.

Specifically, when spouses Valentin learned

that Emilia was getting married to Hugo, O Lay
Kia asked Emilia to have the title to the
property already transferred to her and her
husband Valentin, and Emilia assured her that
"would be arranged (maaayos na)" after her
wedding.
e. The TC determined that spouses Valentin had some
money with which they could buy the property."
i. Valentin was the Chief Mechanic of the Paniqui
Sugar Mills. Emilia failed to convince the
Court that she was financially capable of
purchasing the property.
1. In fact, she opened a bank account only
in 1946 and likewise began filing income
tax returns that same year, 39 while the
property in question was bought in 1943.
4. (ISSUE
NO.
3)
In
resulting
trust,
the
rule
of
imprescriptibility may apply for as long as the trustee has
not repudiated the trust. Once the resulting trust is
repudiated, however, it is converted into a constructive
trust and is subject to prescription.
a. A resulting trust is repudiated if the following
requisites concur:
i. the trustee has performed unequivocal acts of
repudiation amounting to an ouster of the
cestui qui trust;
ii. such positive acts of repudiation have been
made known to the cestui qui trust; and,
iii. the evidence thereon is clear and convincing.
b. The Court categorically ruled that an action for
reconveyance based on an implied or constructive
trust must perforce prescribe in ten (10) years, and
not otherwise, thereby modifying previous decisions
holding that the prescriptive period was four (4)
years.
5. (APPLICATION OF NO. 5) Neither the registration of the
property in the name of Emilia O'Laco nor the issuance of a
new Torrens title in 1944 in her name in lieu of the alleged
loss of the original may be made the basis for the
commencement of the prescriptive period.
a. As late as 1959, or just before she got married,
Emilia continued to recognize the ownership of
spouses Valentin over the Oroquieta property.
b. Immediately after Emilia sold the Oroquieta property
spouses Valentin instituted the present suit for
breach of trust. Correspondingly, laches cannot lie
against them.

Heirs of Yap vs. CA

9/10/2014
0 Comments
Facts:
Lorenzo, Ramon and Benjamin are sons of
Chua Mia. Sometime in February 1966, Ramon Yap purchase a
parcel of land situated at 123 Batanes Street, Galas, and
Quezon City from the spouses Carlos and Josefina Nery, then
Ramon registered the parcel of lot he bought under his name.

After assessing the evidence presented

the trial court adjudged that Benjamin Yap to be the lawful
owner of the property, this was later affirmed by the Court of
Appeals, giving full credit to the Deed of Sale executed by
spouses
Nery
in
favor
of
Ramon
Yap.
Now petitioner is seeking the reversal
of the decision of the Court of Appeals before the Supreme
Court.
Issue:
between

In 1967 Ramon Yap constructed a two

storey 3-door apartment building on the said property for the
use of Yap family. One-fifth of the cost of the construction
was shouldered by Ramon while the rest was shouldered by their
mother. Upon its completion the improvement was declared for
real estate tax purpose in the name of Lorenzo, upon the
request
or
the
wish
of
their
mother.
On July 11, 1970 Lorenzo Yap died,
months later petitioner moved to Manila to reside their
permanently. Ramon Yap allowed them to used one unit of the
apartment.
On March 18, 1992 Ramon Yap
sold his land and share in the 3-dor apartment to his brother
Benjamin
Yap
in
the
amount
of
Php
337,
500.00.
The controversy started when, on June
8, 1992 petitioner sent a letter of advice Ramon yap with
regards to their claim of ownership over the property and
demanded to execute proper deed to transfer the ownership of
the
property
to
them.
On July 22, 1992 Benjamin Yap filed an
action with the RTC of Quezon City for quieting of title
against petitioner. The petitioner averred that in 1966 spouses
Carlos and Josefina Nery offered to sell the parcel of land to
Lorenzo Yap in the amount of Php 15,000.00. Since Lorenzo and
his wife Sally were both Chinese citizens, they requested Ramon
to use his name for the purchase which the latter consented. It
was agreed that the lot would remain under his name until they
acquire Philippine Citizenship or should he, until his heirs
acquires
Philippine
Citizenship.
Petitioner further contented that it
was Lorenzo who finance for the construction of the apartment,
but during trial Sally Yap admitted to the court that their
business was razed by fire in 1964 two year before the
purchased
of
the
disputed
land.

Lorenzo

Yap

Whether or not, the trust agreement

and
his
brother
are
enforceable.

Held:
The Supreme Court held that the trust
agreement between brothers is an implied trust which can be
established by parol evidence. To establish it in real property
the parol evidence should be fully convincing and proven by
authentic
documents.
The testimony given by Sally Yap wife
of deceased Lorenzo Yap is self-serving. She herself admitted
that in 1964 that their business was razed by fire that would
place somehow doubt, as to their capacity to purchase the land
in about two years, while Ramon Yap is an Accountant who has
all
the
means
to
purchase
property.
Wherefore the petition is denied and
the decision of the respondent Court of Appeals was affirmed by
the Supreme Court.

G.R. No. 46390

September 30, 1939

Testate estate of Petrona Francisco, deceased. CASIMIRO TIANGCO

and MARIA TIANGCO, fiduciaries-appellants,
vs.
PROCESO FRANCISCO, petitioner-appellee.
Ortega and Ortega for appellant.
Clemente E. Felix for appellee.
LAUREL, J.:
Petrona Francisco provided in her last will that the income
derived from the one-half portion of her fishpond in the barrio
of Gasak, Navotas, Rizal, shall be devoted to the celebration
of the "Flores de Mayo" in Malabon, Rizal, and for other

religious activities mentioned in the will. Upon probate of the

will the Court of First Instance of Rizal appointed Casimiro
Tiangco as trustee. Shortly afterwards, on March 16, 1922,
Maria Tiangco was also appointed co-trustee to act with
Casimiro Tiangco in supervising the affairs of the trust. The
records of the case disclose that from the beginning the
submission of annual reports to the court was very irregular.
When the accounts for the year 1935 were submitted, Proceso
Francisco, the herein oppositor-appellee, filed an opposition.
Meanwhile, the court appointed the clerk of court as
commissioner to make a detailed examination of the accounts
already submitted, and declared its order of January 30, 1937,
approving the said accounts over the objection of Proceso
Francisco, of no legal force and effect. The trustees entered
an opposition to this decree. Upon the other hand, the
oppositor-appellee, on March 22, 1937, requested for the
temporary substitution of the trustees. The report for the year
1936 having been filed on April 13, 1937, an order for the
joint hearing of the two annual accounts was issued. Again,
Proceso Francisco made several objections to the accounts for
the year 1936 with reference to certain items. In the meantime,
the clerk of court submitted his report. On April 26, 1938, the
court issued the following order requiring the resignation of
the trustees within ten days, and appointed Father L.R. Arcaira
as temporary trustee:
It appearing from the evidence submitted by the
commissioner, regarding the account of the trustees,
that the said trustees have not faithfully discharged
their duties and that their continuance in office would
cause further prejudice to the estate under trusteeship,
they are hereby given ten days within which to submit
their resignation. It is understood that action on the
resignation will be taken by the court upon the filing
and settlement of their account to be submitted by the
trustees pursuant to the order of this court dated April
20, 1938. In the meantime, the parish priest of Malabon,
Father L.A. Arcaira is hereby appointed temporarily
trustee to take immediate possession of the property
under trust and manage the same until regular trustee is
duly appointed. So ordered.
Pasig, Rizal, Philippines, April 26, 1938.

SIXTO DE LA COSTA
Judge

Appellants assign various errors, the principal bearing on the

power of the lower court to require the resignation of the
trustees and the legal sufficiency of the above-questioned
order for this purpose.
The will of the deceased, Petrona Francisco, created a
continuing trust, but no particular persons were named as
beneficiaries. The appellants themselves did not have anything
to do with the trust until their appointment by the lower
court, and they were so commissioned not because of any
beneficial interest they had in the estate but t because their
selection was approved by the lower court in the belief that
they would faithfully perform their obligations. The same court
found later that they "have not faithfully discharged their
duties and that their continuance in office would cause further
prejudice to the estate under trusteeship," and we cannot, on
appeal, override the action of the lower court by reversing its
finding, and indirectly sanction the violation of an
unquestioned and legally existing trust.
It is also contended that the order appealed from does not
contain a finding of facts, as required by section 133 of the
Code of Civil Procedure, and for this reason, the order is
ineffectual. We find that the order read in conjunction with
the report of the clerk of court as commissioner, exhibits a
finding upon all the evidence presented during the trial, and
is sufficient compliance with the requirements of the law.
(Aringo vs. Arena, 14 Phil., 263, 266.)
The appellants likewise contend that the trial court committed
grave abuse of discretion in ordering the resignation of the
trustees-appellants. The power to appoint a trustee is
discretionary with the court before whom application is made,
and this court will decline to interfere except in case of
clear abuse. Thereafter, upon proper showing that the interests
of justice would be adequately served with the removal of the
incumbent trustees, it is likewise within its discretion to do
so (section 587, Code of Civil Procedure), and this court will
refuse to interfere in the absence of a showing of grave abuse
or whimsical and capricious exercise of that discretion.
The order appealed from is confirmed, with costs against the
appellants. So ordered.