In her will Mrs. Smith appointed Leonard DeMerritt and Ernest A. Arend, her sons-in-law, executors and trustees of her estate, and charged them with the execution of the trust created for the benefit of G. Francis Smith, the petitioner. DeMerritt qualified and is acting in both capacities; Arend has neither qualified as executor nor accepted the trust. The petitioner, claiming that the amount allowed him by DeMerritt is insufficient for his maintenance, instituted an ex parte proceeding before the clerk for an increased allowance and for the appointment of a eotrustee.

*274 The jurisdiction of equity to grant relief originates in the occasional inadequacy of the remedy at law; and among cases of inadequacy are those in which the courts of ordinary jurisdiction cannot enforce a right. The equities under this head include those for the performance of trusts. The creation of trusts and the rules by which the conduct of trustees is governed fall properly within the jurisdiction of courts of equity. “It is but reasonable that these courts, after having called the equitable title into existence, should continue to exercise over it a constant care and supervision. Equity affords this protection by appointing and removing trustees, by superintending their discharge of the duties of the trust, by regulating their liability, by filling a vacancy or vacancies in the office of trustee, and finally, by affording the trustees, upon a proper application and upon proper cause shown, the advice and assistance of the court.” Bispham’s Principles of Equity, sec. 135.

The Constitution of 1868 abolished the distinctions between actions at law and suits in equity and provided one form of action for the enforcement or protection of private rights or the redress of private wrongs. Art. IY, sec. 1. Actions at law and suits in equity pending when the Constitution went into effect were transferred to the courts having jurisdiction, without prejudice by reason of the change. Art. IY, sec. 20. Under this provision the Superior Courts became the successors of the Courts of Equity, having their jurisdiction and exercising their equitable powers unless restrained by statute. McLarty v. Urquhart, 153 N. C., 339; Settle v. Settle, 141 N. C., 553; White v. Butcher, 97 N. C., 7; Moye v. Cogdell, 66 N. C., 403; Turner v. Lowe, ibid., 413.

The clerk of the Superior Court is not given the jurisdiction of a court of equity. He is not vested with power affirmatively to administer an equity except where it is specially conferred by statute. Bank v. Leverette, 187 N. C., 743; McCauley v. McCauley, 122 N. C., 289; Vance v. Vance, 118 N. C., 865; Bragg v. Lyon, 93 N. C., 151. He may accept the resignation of executors, administrators, guardians, and trustees, and may appoint their successors when a special proceeding is brought, a final accounting had, and the clerk’s order is approved by the judge. C. S., 4023, et seq. When the sole or last surviving trustee named in a will or deed of trust dies, and in other specified instances, the clerk by proceedings in which all interested persons are parties may appoint a trustee to execute the trust. C. S., 2583. But these statutes are not applicable here. Neither of the appointees has resigned, and the estate is not without a trustee. If, regardless of any statutory provision, the clerk had inherent power in the exercise of equitable jurisdiction generally to appoint trustees when necessary or expedient, a very different question would be presented.

*275 It may be suggested that the judge could have retained the cause and determined the controversy after the appeal had been perfected. C. S., 637, provides: “Whenever a civil action or special proceeding begun before the clerk of a Superior Court is for any ground whatever sent to the Superior Court before the judge, the judge has jurisdiction; and it is his duty, upon the request of either party, to proceed to hear and determine all matters in controversy in such action, unless it appears to him that justice would be more cheaply and speedily administered by sending the action hack to be proceeded in before the clerk, in which case he may do so.”

Conceding that by virtue of this statute the Superior Court may retain a cause on appeal from the clerk, we are confronted with the question whether the record discloses facts which would warrant a decree in equity for the relief demanded in the petition.

If Arend had accepted the appointment and had qualified as the testatrix contemplated, he and DeMerritt would have held the estate as joint tenants; but, as he did not qualify, DeMerritt was clothed with authority to perform the trust. Where joint trustees are appointed any one of them may execute the trust in the event of the death of his co-trustee or eotrustees or of the refusal or inability of the cotrustee or cotrustees to act. It is so provided by C. S., 1736. The principle is this: When the testatrix appointed DeMerritt and Arend to manage her estate she indicated her choice of their joint services and most probably the services of the survivor in preference to those of some other person in whose selection she could have no part. 26 R. C. L., 1276; Annotation, 130 A. S. R., 508; Cameron v. Hicks, 141 N. C., 21; Webb v. Borden, 145 N. C., 188.

The result is that the appointment of a eotrustee with DeMerritt is not a condition necessarily precedent to a faithful execution of the trust created in behalf of the petitioner. For just cause, a court of equity might remove DeMerritt; but the petitioner does not ask his removal. If just cause is shown a cotrustee may be appointed, as the petitioner prays; but the necessity or expediency of such appointment should be inquired into and determined by a suit in equity in which all persons having a beneficial interest are made parties and given an opportunity to be heard and in which the complaint or bill should fully set forth facts which, if established, would justify a decree fox the relief sought by the petitioner. In both these respects the present proceeding is insufficient. Judgment

Affirmed.