104 Ala. 355 | Ala. | 1893
The transaction, in its legal effect, is the same as if said Randolph, Sr., had taken the conveyance directly to himself, and had then executed a deed to a third person, in whose honesty and judgment he had confidence, engrafting upon the trust the same power and discretion he reserved in this deed to himself. He occupies in this deed, the same relations, responsibilities and obligations as a trustee to his said son, as a trustee, in the person'of a third person, in the case we have supposed, would have sustained to the son.
“Mere powers,” says Mr. Perry, “are purely discretionary with the donee; he may or may not execute them, at his sole will and pleasure, and no court can compel or control his discretion, or exercise it in his stead or place, if for any reason, he leaves the power unexecuted. If the donee executes the powers, but executes them in a defective manner, courts may aid the execution and supply the defects, but they cannot exercise mere naked powers conferred upon a donee. It is different with powers coupled with, a trust. In this class of cases, the power is so given that it is considered a trust for the benefit of other parties * * and becomes imperative. * * Courts will not allow a clear trust to fail for want of a trustee ; nor will they allow a trust to fail by reason of any act or omission of the trustee.” And, as was held in McDonald v. McDonald, 92 Ala. 542, “A court of equity will never favor a construction that confers upon a trustee absolute and uncontrollable powers.” — 1 Perry on Trusts, § 248; 2 lb. % 507, and authorities there cited.
Without statutory direction, or specific authority in the instrument creating the trust, or an order of court 'allowing it, it may be stated as a general rule, that trustees are not permitted to invest trust • funds in the stock or shares of any private corporation, and the rule is not varied by the fact that the stock is considered good by discreet business men who evince their confidence by investing their own funds therein. — 11 Am. & Eng. Encyc. of Law, 813. If there are no directions in the instrument, nor rules of court, nor statutory provisions in relation to investments, they must be governed by sound discretion and good faith. — Perry on Trusts, § 452, and authorities in n. 1.
The rule perhaps can not be better stated than as we
The policy of the law of the State forbids such investments, for it is provided in the constitution itself, that “No act of the General Assembly shall authorize the investment of any trust fund by executors, administrators, guardians and other trustees in the bonds or stock of any private corporation.” — Art. IV. § 35.
The trustee in this case, embarked the whole trust estate in the stock of a recently formed land company, organized, as is alleged, as a purely speculative venture, the risks in which were extremely hazardous, and it is averred, that the certificates of stock were issued to, and the trustee took them , in his own name. He thereby imperilled it in a way that sound discretion and good faith can not sanction. The failure and winding up of' the enterprise, in the entire loss, as is alleged, to all the stockholders of their capital stock, furnishes evidence of the recklessness of the hazardous risk this trustee assumed.
The demurrer to the bill should have been overruled.
Reversed and remanded.