172 Mich. 600 | Mich. | 1912
{after stating the facts). We will consider the claimed items of credit in their order. At the outset it is pertinent to observe that the powers conferred upon the trustee by the instrument creating the trust are peculiarly broad. The beneficiaries are each to receive from the trust fund—
“One-third of the income thereof, or so much as may be necessary to be used for their support and education, and if the income shall be insufficient, then so much of the principal as may in the discretion of said trustee or his successor in office be necessary for that purpose, and to this end I do hereby devise and bequeath to said trustee all the residue of my estate aforesaid, vesting in said trustee full power to sell, exchange all or any portion of said property and to reinvest the same as will in his judgment be for the interest of said legatees.”
In Quimby v. Uhl, 130 Mich. 198, at page 212 (89 N. W. 722), it is said:
“ Where beneficiaries either expressly or impliedly assent to the action of their trustee in managing their property not in strict accord with the terms of the trust, they will be held to have acquiesced in such action ” — citing cases. .
See, also, Skelding v. Dean, 141 Mich. 143 (104 N. W. 410), and authorities there cited and reviewed.
It is urged that, when the Cleveland investment was made, Mrs. West was an infant, and therefore incapable of consenting to an- unlawful use of the trust estate. This is true, but, as already pointed out, she became of age a few months later, and by her acts thereafter clearly implied her consent. Her failure to disaffirm the acts of her trustee during the 2£ years following, while said trustee was alive, is also significant. We must hold that the $2,000 constituting the Cleveland investment should have been allowed as a credit in the account of Mrs. Daglish. It necessarily follows that the item of $400.99 paid out by the trustee as interest upon the loan from the proceeds of which this advancement was made should likewise have been allowed.
The Omer limekiln item of $2,600. We are unable to discover from the record that the trustee advanced for this purpose more than $1,400, either from her own estate or that of her cestui que trust. The balance of $1,200 was raised by hypothecating a mortgage for $2,000 upon the property itself. This investment was unquestionably made by the trustee for the benefit of Mrs. West and at her request. Mrs. West was at the time about 23 years of age, and knew that her estate was being used for the purpose of raising the money. This item to the amount of $1,400 should have been allowed.
Touching the demand for an allowance for compensa
The judgment is reversed, and'the case is remanded to the circuit court, with directions to enter a judgment in accordance with this opinion. Appellant will recover costs of the appeal.