White v. Sherman , 168 Ill. 589 ( 1897 )

Mr. Justice Magruder

delivered the opinion of the court:

The questions involved in this case relate to the liability of the estate of Hugh A. White, deceased, growing out of his purchase of three hundred shares of railroad stocks with the funds of the Sherman trust estate, and growing out of his collection of commissions upon premiums paid by him for insurance upon the property of the trust estate. Did White, as trustee of the Sherman estate, have the right, or was he authorized, to invest the funds of the estate in the railroad stocks in question? Did White, as such trustee, have the right to appropriate to his own use such commissions so as aforesaid received by him?

First—The will of Francis C. Sherman is silent as to the mode of investing the rents accumulating prior to the date for the application thereof upon the mortgage resting upon the property. Where there are no express directions in the instrument creating the trust, and no statutory provisions, in relation to the character of the securities in which trust funds may be invested, a trustee cannot invest such funds in stocks, bonds or other securities of private business corporations. In England, trustees are required to invest trust funds in real estate securities, or in the public securities of the British government. In this country the same requirement, in regard to making investments in real estate securities or government securities, is generally recognized by the courts. At any rate, “all speculative risks are forbidden.” (2 Pomeroy’s Eq. Jur. sec. 1074). The rule is, that, in the investment of trust funds, the trustee must not only act in good faith and use sound discretion and reasonable vigilance, but, where he is appointed by a court and is acting under the directions of a court, he must select such securities as the court will approve. (11 Am. & Eng. Ency. of Law, p. 814).

In the case at bar, the evidence shows that the railroad stocks, in which the trustee, White, invested the trust funds of the Sherman estate, were very fluctuating and speculative. In fact one of the witnesses speaks of them as being “wild cat” securities. The speculative character of these securities was well known to the trustee, White. White dealt in such stocks through brokers for more than six years before his death, buying and selling the same to the amount of about $2,000,000.00; the amount of money, however, which actually changed hands in the buying and selling of said stocks of the actual cash value of $2,000,000.00, was only about $50,000.00. After he made his first purchase of these stocks on February 25, 1888, to-wit: of the one hundred shares of Chicago, Rock Island and Pacific railroad stocks, and before he made his second purchase on October 27,1888, such stocks had begun to decline. The one hundred shares first purchased were bought at $113.00 per share, but in July, 1888, such stocks had declined in value to a sum less than $107.00 per share. Notwithstanding this decline, White in October made another investment in the same class of securities by purchasing an additional one hundred shares of said Chicago, Rock Island and Pacific railroad stock.

Second—The evidence is clear, that all the railroad stocks so purchased by White were purchased in his own individual name, and not by him as trustee of the estate. The certificates, made out when the stock was issued to him, were made out in his own name, and he appeared upon the books of the company, issuing the stocks, as the individual owner thereof, and not as the owner thereof in trust for the estate of which he was the trustee. In all his communications with the beneficiaries in the trust for whom he was acting, whether such communications were made to them orally or by written report, he concealed, or failed to mention, the fact that the stocks stood in his own name.

When a trustee has in fact converted trust funds to his own use or without authority has invested the trust funds in any other property into which such funds can be distinctly traced, the cestui que trust has an election either to follow the same.into the new investment, or to hold the trustee personally liable for the breach of trust. (2 Story’s Eq. Jur. secs. 1262, 1263; Breit v. Yeaton, 101 Ill. 242). Whatever the actual intention of the trustee may be, the weight of authority seems to be, that, where he invests trust money in his individual name, he commits a breach of trust, which subjects him to the same liability, as if there had been a willful conversion to his own use. (Morris v. Wallace, 3 Pa. St. 319; Stanley's Appeal, 8 id. 431; McAllister v. Commonwealth, 30 id. 536; 2 Pomeroy’s Eq. Jur. sec. 1079; Gilbert v. Welsch, 75 Ind. 557; Naltner v. Dolan, 108 id. 500, and cases cited; DeJarnette v. DeJarnette, 41 Ala. 708). The doctrine is a familiar one, that every presumption is indulged against the trustee who has personal dealings with the trust. Where the conduct of the trustee in relation to the trust property is fraudulent in its tendency, as well as in its nature, its consequences, if injurious, are imputed to the trustee personally, and his estate will be held liable therefor. (27 Am. & Eng. Ency. of Law, 193, 196).

The authorities are uniform to the effect, that the trustee may not deposit the trust funds in his own name. When he has converted the trust funds to his own use by investing them in his own name, he will be held to a strict accountability for the conversion, and the trust will follow the investment at the option of the cestui que trust. In such cases a strict accounting will be exacted from him. (27 Am. & Eng. Ency. of Law, pp. 160-163; McDonnell v. Harding, 7 Sim. 177; Massey v. Banner, 1 Jacob & W. 241; 2 Pomeroy’s Eq. Jur. 1076; Jenkins v. Walter, 8 G. & J. 218; Summers v. Reynolds, 95 N. C. 404; Syme v. Badger, 92 id. 706; Brown v. Dunham, 11 Gray, 42; Williams v. Williams, 55 Wis. 300).

It is said, that White’s books showed the purchase' of these stocks with trust funds, and that he reported the same to the heirs; and that, therefore, he would be precluded from claiming them as his individual property. This would undoubtedly be true if the beneficiaries were claiming, that they, and not he, were the owners of the stocks; but it is optional with the beneficiaries either to take the stocks, or to call for the amount originally invested therein, unless they are estopped by acquiescence or ratification.

Third—It is, however, claimed by plaintiff in error, that the complainants herein are estopped from questioning the investments, made by White in these railroad securities, upon the alleged ground, that they had knowledge of such investments and acquiesced in them. Such acquiescence and knowledge are sought to be established by the testimony of the stenographer, who had been in the service of White in his lifetime, and by the contents of certain reports, relating to his management of the trust, which he submitted to the beneficiaries therein semi-annually. It is not, nor can it be, claimed, that any of this testimony in regard to acquiescence is binding upon the trustee, Reed, or his predecessor, the trustee, Swan, who were appointed long after the death of White.

Even though a trustee may have acted with the best intention, yet if the trust estate has been wasted by his own breach of trust, there can be no question as to his liability, unless the beneficiary sanctions, or acquiesces in, the wrong with full knowledge of the facts, or of his rights in the premises. In order to bind a cestui que trust by acquiescence in a breach of trust by the trustee, it must appear that the cestui que trust knew all the facts, and was apprised of his legal rights, and was under no disability to assert them. Such proof must be full and satisfactory. The cestui que trust must be shown, in such case, to have acted freely, deliberately and advisedly, with the intention of confirming a transaction which he knew, or might or ought, with reasonable or proper diligence, to have known to be impeachable. His acquiescence amounts to nothing if his right to impeach is concealed from him, or if a free disclosure is not made to him of every circumstance which it is material for him to know. He cannot be held to have recognized the validity of a particular investment, unless the question as to such validity appears to have come before him. The trustee setting up the acquiescence of the cestui que trust must prove such acquiescence. The trustee must also see to it, that all the cestuis que trust concur, in order to protect him from a breach of trust. If any of the beneficiaries are not sui juris, they will not be bound by acts charged against them as acts of acquiescence. The trustee cannot escape the liability merely by informing the cestuis que trust, that he has committed a breach of trust. The trustee is bound to know what his own duty is, and cannot throw upon the cestuis que trust the obligation of telling him what such duty is. Mere knowledge and noninterference by the cestui que trust before his interest has come into possession do not always bind him as acquiescing in the breach of trust. As a general rule, acquiescence by a tenant for life, or by a cestui que trust for life, will not bind the person entitled to the remainder. (Zimmerman v. Fraley, 70 Md. 561; Kerr on Fraud, (Bump’s ed.) pp. 297, 299, 300, 301, 312; 2 Pomeroy’s Eq. Jur. 1083, note; Perry on Trusts, secs. 285, 467; Life Ass. v. Siddall, 3 D., F. & J. 58). Imperfect iuformation will be regarded as equivalent to concealment; and a person is not estopped by his silence when there is no positive duty or opportunity to speak; nor will mere delay short of the period, fixed as a bar by the Statute of Limitations, preclude the assertion of his equitable rights. (Phillipson v. Gatty, 7 Hare, 516; Bispham’s Hill on Trustees, 526; 7 Am. & Eng. Ency. of Law, 13, note, and cases cited; 1 Perry on Trusts, sec. 467; Gibbons v. Hoag, 95 Ill.45; Henry County v. Drainage Co. 52 id. 454).

Some testimony was introduced, tending to show that early in the year 1887 White called some of the beneficiaries in the trust to his office, and brought up the question as to how the rents should be temporarily invested before the arrival of the period for their application upon the mortgage. At this interview all the beneficiaries were not present. Three of them were absent; two of them, at that time were under age. Only two, to-wit: the two children of the testator, were entitled to any portion of the income from the rents. The grandchildren of the testator were mere remainder-men. We do not deem it necessary to enter into a discussion of the question whether the remainder was a vested or a contingent remainder. It is said, that White then made some statement about the difficulty of lending the money for short periods by making real estate loans, or call loans; and suggested something about buying railroad stocks. The testimony upon this subject is that of one witness, who was a stenographer of White; it is not clear as to the extent, to which he communicated with the beneficiaries upon the subject of investing in railroad securities;, but it is clear that he was told by one of the beneficiaries present to use Ms own judgment in regard to the matter. This statement by one seems to have been concurred in by all the others who were present. He was not thus authorized by them to invest in railroad securities. They did not choose, and were not bound, to exercise any judgment upon the subject. He had control of the estate; and the matter of investment was entirely within his own discretion, subject to the rules of law. In saying to him, that he should use his own judgment, they merely said to him what the law had already said to him. They refused to take any responsibility in the matter. We can not see, that there was anything in the interview in 1887 upon this subject, which amounted to any authorization to him to invest the funds of the estate in railroad stocks.

The stenographer, who testified to this interview, says that White took the stocks in his own name, so as not to be obliged to apply to the court, in case he should desire to sell them. The reason, given for not wishing to make such application to the court, was that it might be necessary to dispose of the stocks quickly, and an application to the court would create delay. We do not regard this reason for taking securities in his own name as sufficient. He was a trustee appointed by the court in accordance with the provisions of the will, and it was his duty to call for the direction of the court when necessary, and to act under the orders of the court when necessary. It was not, therefore, proper for him to put himself in such a position, as would relieve him from the necessity of asking the direction of the court.

As to the reports, which White made to the heirs semiannually, we concur with the Appellate Court, which says in its opinion in regard to these reports: “That the reports were misleading, must be apparent to any one who, without other information, should examine them.” These reports concealed the fact, that the securities had been taken in White’s name; and also concealed the fact, that the securities were steadily declining in value all the time.

The Appellate Court further says: “In his report of July 1, 1888, which was the report next following the purchase of the first one hundred shares of the Rock Island stock, it was made to appear that he bad bought for the estate some stock in that company—but without specifying how many shares—to the amount of $11,300.00, and had received a dividend thereon. In his report of January 1, 1889, which was the one next following the purchase of the one hundred shares in the Missouri Pacific company, and another like number of shares in the Rock Island company, he made no mention of having purchased these stocks, but, presumably in order to account for the money paid for them, his report stated as follows: ‘Pd. Winchester & Co., acc’t loan, voucher No. 249, $18,150.00.’ In that same report under the heading of investments and assets, he stated: ‘To cash invested in railroad securities, $29,450.00.’ This amount of $29,450.00 was the aggregate of his stock purchases as already stated, and it is carried along in all subsequent reports down to and including July 1, 1890, under the heading of investments, as ‘Cash invested in railroad securities. ’ From this date it is successively called: ‘Cash invested in railroad stock,’ and ‘invested in stocks,’ until in the last report of January 1, 1894, it is denominated under the heading of ‘resources,’ as ‘Sundry railroad stocks (cost) $29,450.00.’ Wherever in the reports there occurs a state' ment of receipts from the railroad companies, it is usually as interest, but is sometimes mentioned as dividends. In none of the reports is it stated, except inferentially, that any Missouri Pacific stock had ever been bought for the estate or was held by it, and in but one report, that of July 1,1892, was it ever stated how many shares of stock in either company was owned by the estate. * * * With reference to the $18,150.00, now known to have been invested in Missouri Pacific and the second lot of Rock Island shares, and the certificates of which were taken in White’s individual name, there seems never to have been any full disclosure thereof made by White. The report, which accounted for the money they cost, showed on its face a loan of that sum. It would seem to be hardly susceptible of any other reading by a person of ordinary understanding, and that it would be so interpreted by an expert book-keeper, is shown by the testimony of the expert who examined the reports in connection with White’s books of account, and testified that the report showed a loan instead of a purchase, and that White’s books showed the same, although it was otherwise conclusively proved that no such loan was ever made. We are unable to comprehend how the furnishing of such information can be regarded as coming within the rule, that demands full information of all that is material to be given to one against whom estoppel by confirmation and acquiescence is invoked.” We fully approve of the views thus expressed by the Appellate Court in their opinion in reference to the reports in question.

There is absolutely nothing in this record to show, that, when fully iuformed of these investments in railroad securities, the parties in interest did not object to the same and disapprove of the same. They are incompetent witnesses, and could not testify in this case. As to the report of July 1, 1892, upon which so much stress is laid, that report merely states what the trustee had already done; it does not ask the beneficiaries to advise him what he shall do. The fact, that he stated to them what he had done, is not evidence that they approved of what he had done. The remainder-men cannot be estopped by the receipt of dividends upon the stocks, because no such dividends were ever paid to them. Nor is it apparent that such dividends entered into the sums of §3000.00 per year, which were paid to the life tenants. So far as it is shown to the contrary, such dividends may have been applied with other money in payment of the mortgage. Consequently, we do not think that any acquiescence can be inferred from the receipt by the parties interested of dividends on the stock.

The evidence does not show, that the question of the liability of the trustee for these investments was ever raised as between the trustee and the beneficiaries. (Kerr on Fraud,—Bump’s ed.—301, and cases cited). The only positive testimony in this case is that showing the breach of trust. The testimony introduced to show ratification or acquiescence in such breach is in the nature of inference only. Upon the whole our conclusion is, that the act of the trustee in investing the funds of the estate in these speculative securities cannot be justified on the ground of acquiescence or ratification on the part of the parties interested.

Fourth—It is objected that plaintiff in error has been charged with compound interest. We think that she is chargeable with interest at legal rates with annual rests, on the sums invested by said White in said stocks, from the dates of the investments, less deductions for all dividends received with like interest. This rule, adopted by the Appellate Court, does justice to the parties, and is in accordance with the settled policy of equity. (Hough v. Harvey, 71 Ill. 72; Hughes v. People, 111 id. 457; Lehman v. Rothbarth, 159 id. 270).

Fifth—The plaintiff in error was liable for the -full amount of the commissions, shown to have been received by her husband on insurance premiums paid by him out of the trust funds. He joined a certain underwriters’ association for the purpose of getting a commission upon such premiums. He was paid a commission of seven and one-half per cent on the premiums paid by him for insurance on the Sherman House, and concealed that fact from the beneficiaries. The law does not allow a trustee to retain any personal gain, which he may obtain in such a manner as subjects him to the temptation of placing himself in a position which may be hostile to the interests of the estate, whether the estate is actually injured or not as a matter of fact. The fact, that he was receiving commissions, might have subjected him to a temptation to place a larger line of insurance than was necessary on the trust property. It is not essential, that the estate has suffered a loss from what he has done; it is sufficient that he has gained a profit. Whether the contract was beneficial or injurious to the estate is wholly .immaterial. An agent is only entitled to commissions upon a faithful performance of all the duties of his agency. One of these duties is to render to his principal statements of all money received and profits made through his agency. (Fish v. Seeberger, 154 Ill. 30; Hoyt v. Shipherd, 70 id. 309; 27 Am. & Eng. Ency. of Law, 187, 194, 196; Perry on Trusts, sec. 209; Gillette v. Peppercorne, 3 Beav. 78; 2 Pomeroy’s Eq. Jur. sec. 1075).

It was proper to deduct from the commissions received by White the fees, which he paid to the underwriters’ association in order to maintain his membership therein. The law only charges him with the profits which he made out of the trust estate. These profits consisted of the commissions less what he paid for membership fees.

Sixth—It is said on behalf of plaintiff in error, that the appellees herein are estopped by reason of a finding made in the decree entered on April 24, 1894. That decree finds among other things, that White “faithfully discharged his duties as such trustee of said estate until the 24th of March, 1894, when he departed this life.” The point is made, that the validity of White’s acts in investing in the railroad securities cannot be questioned in this present suit, because he was found by such decree to have faithfully discharged his duties. The finding in question is merely in the reciting part of the decree, and is not part of the final order therein. The decree in question was entered by consent. The object of the bill, filed on April 23, 1894, was to obtain the appointment of a trustee in the place of White who had died. Swan was finally appointed as successor in trust; but Swan or Reed, the main complainant in this suit, was not a party to the suit begun on April 23, 1894. It is true, that the decree of April 24,1894, appointed Swan successor in trust. But the latter decree did not involve the question as to the liability of White’s estate to account for the money invested in the railroad securities. Such liability was not a question in issue in the suit in which the decree was rendered. Former adjudication, to constitute a bar, must have been on what was actually in issue, and the determination of which was essential to the judgment. (6 Am. & Eng. Ency. of Law, 794, note 4; 21 id. 233; Riverside Co. v. Townshend, 120 Ill. 9). We are of the opinion, that the mere preliminary recital in the decree of April 24, 1894, that White had faithfully discharged his duties as trustee, does not preclude the complainants in the present suit from questioning the validity of the investments here under consideration.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.