This is a petition for appointment as one of three trustees of a trust created by Louis F. Buff on December 28, 1935. After hearing, the Probate Court granted the petition and appointed the petitioner. The other trustees and the Buff & Buff Manufacturing Company, which had been allowed to intervene, appealed.

On December 28, 1935, Louis F. Buff conveyed one hundred shares of the common stock of the Buff & Buff Manufacturing Company to himself, Mary L. McAllister and Henry A. Buff as trustees, to deal with the trust property according to the written instructions of Louis F. Buff, the dividends to be disposed of in the discretion of the trustees, they having discretion to make monthly gifts therefrom “to Louis F.'Buff and to the family of said Louis F. Buff, said family to include the wife of Louis F. Buff, his children and any issue thereof.” The trust was to “continue until the death of the longest liver of Mrs. Buff and the now living children of the donor,” and then the trust property was to be transferred to a corporation to be organized by the trustees and the stock of the corporation was to be divided “equally among the three trustees at said time.”

Louis F. Buff is now deceased. The petitioner, Henry J. Burn, is the husband of one of his daughters. The trust instrument provided as follows: “Anything to the contrary notwithstanding in the event Louis F. Buff nominates in writing a person to fill the vacancy caused by his death, the remaining trustees shall appoint said person to fill the vacancy caused by the death of Louis F. Buff.” Louis F. Buff, on December 28, 1925, had made in his own handwriting an entry in a small note book reading as follows: “W. J. B. [William J. Buff] is only one with Miss M. [McAllister] who can conduct business & they must not *659be hampered in any way.” Rightly it is not argued that that entry, made ten years before the making of the trust instrument, was a nomination. Yet the only power vested in the remaining trustees to appoint a successor to Louis F. Buff was dependent upon a nomination in writing by Louis F. Buff. In the absence of such a nomination, only the courts had power to appoint a successor trustee.

The first question relates to the jurisdiction of the Probate Court. We do not need to refer to the jurisdiction of that court under its broader equity powers. G. L. (Ter. Ed.) c. 215, § 6, as amended. Massachusetts Charitable Mechanic Association v. Hersey, 318 Mass. 518. By G. L. (Ter. Ed.) c. 203, § 5, where “no adequate provision for filling the vacancy is made” in a written instrument a trustee under which has died, “the probate court” is empowered to “appoint a new trustee to act solely or jointly with the others as the case may be.”

The only ground of the demurrer of the respondents, not covered by what has been said, is that the “petitioner is not shown to be a party interested.” The petitioner Henry J. Burn petitioned for appointment as trustee at the request of children of Louis F. Buff, to whom the trustees were empowered by the trust instrument to make “gifts” from income. We do not agree with the contention of the respondents that the word “gifts” indicates that they were to be pure gratuities from an absolute owner. On the contrary, we think that the children of Louis F. Buff had rights to have the trustees use their discretion in the distribution of income. See Wilson v. Wilson, 145 Mass. 490; Corkery v. Dorsey, 223 Mass. 97, 101. Henry J. Burn properly petitioned in the right of the assenting children of Louis F. Buff.

On the merits, we think there was no error in the decree appointing Henry J. Burn as successor trustee. The judge was not required to find loches upon the facts of this case.

Costs and expenses payable out of the trust estate may be awarded to either party or both parties or their counsel in the discretion of the Probate Court.

Decree overruling demurrer affirmed.

Decree appointing successor trustee affirmed.