Traxler v. Rothbart , 473 Mich. 888 ( 2005 )

703 N.W.2d 796 (2005) 473 Mich. 888

Barbara Sue TRAXLER and Norma Jean Castle, Successor Co-Trustees of the Norman John Sinclair Trust Dated March 27, 1996, Plaintiffs/Counterdefendants-Appellees,
v.
Shire ROTHBART, Defendant/Counterplaintiff-Appellant.

Docket No. 125948, COA No. 243492.

Supreme Court of Michigan.

July 29, 2005.

On order of the Court, leave to appeal having been granted and the Court having considered the briefs and oral arguments of the parties, the order of December 27, 2004 which granted leave to appeal is VACATED and leave to appeal is DENIED, because we are no longer persuaded that the questions presented should be reviewed by this Court. The Court unanimously agrees that a purchaser of trust property may be considered a protected third party under M.C.L. § 700.7404.

MARKMAN, J. dissents and states as follows:

I would reverse the decision of the Court of Appeals and remand to the trial court for the entry of an order of specific performance of the purchase agreement. M.C.L. § 700.7404 provides that a third party is "fully protected" in dealing with a trustee when the third party lacks actual knowledge that the trustee has exceeded or improperly exercised a trust power. Here, the trustee exceeded her authority by entering into a purchase agreement with the defendant without first obtaining her cotrustee's approval. Because the statute mandates that defendant be "fully protected," specific performance is required in order to put defendant in the same position he would have been in had the trustee possessed the power she purported to exercise.