
    Mook, Trustee, v. The Akron Savings & Loan Company.
    
      Supreme court not to weigh evidence, when — Certificates of stock in building and loan company — Made testamentary gift to granddaughter — To be held in trust — Trustee for personal use pledged trust stock — Loaning company charged with notice of trust— And regarded a party to breach of trusteeship — Liability and law of trusteeship.
    
    1. - Where the evidence is chiefly documentary, decisive and not conflicting, the court has only to declare its probative effect, not to weigh it.
    2. M. C. invested money in stock of a building and loan company, took the certificates in the name of her granddaughter thirteen years old, with a parenthetic clause after the name “(M. C. or other legal guardian may draw)” and she retained possession of them. Held: This was an inchoate gift in trust for the granddaughter, to be followed, as later events disclosed, by a testamentary designation of the purpose and limitation of the trust.
    3. Shortly thereafter the grandmother died, leaving a will, wherein she named her lawyer R. as executor (without bond) and trustee of the property she should die possessed of, for the use and benefit of the granddaughter. She gave to her executor all moneys held by her in trust for the granddaughter, declaring in the will her intention to make her executor her successor in said trust, to hold for the granddaughter and pay to her or for her benefit the income, till she be thirty years old. The executor qualified as such, having in his possession the certificates which the testatrix placed in his hands, and he sent the company a copy of the will, with notice that he held the certificates under the will, and requested that dividends be paid to him as trustee. Thereafter he borrowed money from the company for his personal use, pledging the certificates as collateral security, and cancelled and turned in some for cash, signing the transfers and the written pledges as trustee. He squandered the money and died insolvent. Held: The company was a party to this breach of trust and conversion, and it must surrender to the plaintiff as successor in the trust, the pledged securities, and pay to him the value of those cancelled, with accumulated dividends and interest.
    4. The company required the executor to obtain the granddaughter’s power of attorney, ratifying all his transactions with the stock. She was then twenty-two years old, but feeble, and not as capable of business as the average woman, and had been living with the executor’s family as a daughter. She did not read the writing, did not know its contents, nor that he had converted and squandered her funds; he told her it empowered him to draw her funds and deposit them in another bank, and she trusted him implicitly as a father. Held: The company is chargeable with notice of the fraud, being warned by him of his dread to disclose the truth to her. At that time she had no power over the corpus of the fund. For both these reasons the company cannot take benefit of the writing.
    (No. 13374
    Decided February 11, 1913.)
    Error to the Circuit Court of Summit county.
    This is a suit in equity to recover the possession or value of eight certificates of $1,000 each of the stock of the defendant company, alleged to have been held in trust for Henrietta C. Vance /by her grandmother, Martha Cooper, at the time of the latter’s death, and thereafter held in the same trust by one L. A. Russell, executor of the will of Martha Cooper, and acting trustee for Henrietta, and pledged by him for money lent to him by the company; and the value of six other certificates of the same stock held by him as such trustee (five of the face value of $1,000 and one of $500), and by him cancelled and surrendered to the company for their face value; in all fourteen certificates of the total face value of $13,500.00, which the plaintiff avers that Russell wrongfully diverted from the purpose of the trust, converted into money and appropriated to his own use, with the assent and connivance of the defendant company; and the accumulated dividends on said certificates and $2,050 of certificates still held in like trust, with interest on the total indebtedness.
    The defendant admits that these certificates were issued and delivered to L. A. Russell, but avers that certain of them were regularly surrendered and cancelled; that eight were in good faith pledged with the company for loans and are by it still held as security for the repayment of the loans with six per cent, semi-annual interest; that these, amounting to $8,000.00, are still outstanding, and that the company is ready and willing to account to the legal owner of the uncancelled certificates and pay their value, including unpaid dividends, after deducting the amount due on loans; and admits that Martha Cooper died February 26, 1899, leaving a will of which L. A. Russell acted as executor; but denies every other averment, thus disputing that the plaintiff is duly qualified as trustee, vice Russell, for Henrietta Vance.
    Counsel for the defendant further recite in their brief as follows: July 6, 1898, L. A. Russell purchased fourteen certificates of ten shares each from the company, aggregating $14,000.00. These were issued in the regular form and course to “Henrietta Cooper Vance (Martha Cooper or other legal guardian may draw).” August 6, 1898, another certificate of $1,000.00 was purchased by Russell; April 4, 1902, a certificate of $50 held by Mariam Russell was assigned to Henrietta C. Vance; and April 12, 1902,. another for $500 was purchased by L. A. Russell. Said investments in stock by Russell aggregated $15,500.00.
    The essential parts of said will are as follows: “I hereby make, constitute and appoint Samuel Lispenard Cooper * * *, a nephew of my late husband, and L. A. Russell, of Cleveland, Ohio, executors of this my last will and trustees of the property I shall die possessed of and entitled to, for the use and benefit of the beneficiaries of this my will. * * * I direct that all bequests in trust and all powers herein given to my said executors shall apply to either who 'shall qualify. * * * I give and bequeath all my property, real, personal and mixed and rights to property of which I shall die possessed and entitled, to my said executors or whichever of them shall qualify * * * in trust, to be by them held and invested, or sold and reinvested in their or his discretion, and the income thereof 
      
      to be paid semi-annually, quarterly or monthly, as it may be available, and the principal thereof to be fully paid and distributed as follows, viz.:
    “I give and bequeath out of my personal estate $5,000 to my said granddaughter, Henrietta, the principal thereof to be held for her by my executors as trustees, and the income paid to her till she is thirty years of age, when the principal shall be paid to her.
    
    “I also give to my said executors to so hold for her and pay income thereon to her or for her benefit till she be thirty years of age and then to her be paid the principal thereof, all such moneys as at the time of my death I shall or may hold in trust for said Henrietta, so intending to make my said executors or executor who shall qualify, my own successor in said trust or trusts for said Henrietta. * * *
    “These bequests and all of them in trust for each of my said grandchildren, I hereby make subject to these conditions: The share given to each, shall in the event of his or her death before becoming thirty years of age, immediately upon such death become the property of the survivors of them, share and share alike if there be two, and all to one if only one survive, but under the like conditions as to payments of income only, ■ till such surviving one or ones be each thirty years of age, as I have provided in the original bequest to each.” * * *
    They also admit that Russell qualified as executor of the estate of Martha Cooper and continued to have charge of her property and assets until the time of his death in February, 1908.
    Henrietta C. Vance lived with her grandmother, Martha Cooper, until the latter’s death in 1899, from which time she made her home with said Russell and continued to live with him until his death in February, 1908. Miss Vance became of full age November 22, 1902.
    From March 8, 1904, until February 3, 1907, said Russell, from time to time, secured loans from the defendant in error and pledged with said company various certificates of said stock to secure said loans and thereafter the company can-celled said pledged certificates, pursuant to Russell’s direction.
    In the will it appears that Henrietta will not be thirty years old till November 22, 1914. The record shows other material facts, which seem not to be disputed in the briefs nor in oral argument, as follows:
    L. A. Russell was Martha Cooper’s attorney and negotiated for her with the defendant company, and had all of the fifteen stock certificates which were issued before her death, made to “Henrietta Cooper Vance (Martha Cooper or other legal guardian may draw).” The last one was dated August 1, 1898.
    January 26, 1899, one month before Martha Cooper’s death, in reply to a letter from the company, Russell wrote: “Please consider Mrs. Martha Cooper, Guardian of Henrietta C. Vance, applicant to surrender $5,000 of certificates for cash,” etc. She was not the “legal” or statutory guardian, but Russell as her attorney was treating her as quasi-guardian, and the defendant brought the letter into the record as showing the company’s acquiescence. Again, February 20th, “Yours saying $3,000 could be taken up of Mrs. Cooper’s stock held for Henrietta Vance, came duly. She is now too ill to sign. If she shall die, as seems probable, as her executor and Henrietta’s guardian, I shall probably need to change the investment.”
    March 26, 1899, about one month after Martha’s death, and after he qualified as executor (but not as trustee), he sent the defendant company a copy of the will, with his letters executory, and wrote: “No one has become guardian for Henrietta. I hold her securities in trust, as I did in Mrs. Cooper’s lifetime, but nozo under the authority of Mrs. Cooper’s will. * * * When dividends are payable * * * please make them payable to me as Trustee instead of to Guardian as face of certificates calls for.” This request was complied with.
    April 7, 1902, Russell purchased the $500.00 certificate of stock, written on its face to “L. A. Russell, Trustee for Henrietta 'Cooper Vance.”
    
    From March 7, 1904, to December 16, 1904, Russell borrowed $2,500.00 from the defendant and pledged three of these certificates, one $500, two $1,000, as collateral security; and three others of $1,000 each he surrendered to defendant for $3,000.00; all transferred to the company by endorsements signed by him either as “Executor and Trustee” or as “Trustee for Henrietta C. Vance.” Five were cancelled July 1, 1904; the last one January 5, 1905.
    Thereafter he pledged, eight more certificates of $1,000 each for loans to him from October 16, 1905, to February 7, 1907, amounting to $8,000.00, and transferred them to the company by endorsements subscribed by him either as “Trustee” or “Trustee for Henrietta C. Vance.” These latter are still in vogue but in pledgee with the defendant.
    These transactions were all after the death of Martha Cooper, and were conducted in part by exchange of letters between Russell and the defendant company. October 6, 1906, replying to his request for another loan, the company wrote, expressing “doubt as to our legal right to make loans to you as trustee. Looking over the will and your appointment, it was not clear to us that you were in power to borrow on the stock,” etc. November 27th they required him to get a power of attorney from her, saying: “Talk it over with her (Henrietta) * * * we think you can explain to her satisfactorily.”
    Russell responded: “I very much prefer taking up my loan, to open the subject with Henrietta. I hold the fund for her under Mrs. Cooper’s will and not othertvise, and so far her own expenses are within her income. I do not wish to discuss my loan with her. If I can pay off the loan, it is better for me and your Board.” The company renewed its demand December 3d, thus: “This matter must be fixed up by Saturday of this week, either by paying the cash or securing the signature of Henrietta to the- certificates, notes and pledges.”
    December 15, 1906, Henrietta signed an instrument empowering Russell, “as my Trustee and Guardian in fact, in whose family I have my home, to do every act concerning the $10,000 of stock in The Akron Building & Loan Association which I could do, if the Trusteeship of Russell under the will of Martha Cooper were closed, and the control of the stock were turned over to me; hereby confirming every act he has done in regard thereto, as well before as since I became of age.” All loans and pledges but the last were made before the instrument was executed.
    Russell died in February, 1908, insolvent, leaving his debt of $8,000.00 unpaid (for which the defendant still holds Henrietta's eight $1,000 certificates of stock as security), without restoring or accounting for the trust fund.
    The common pleas court rendered judgment against the defendant for the pledged stock that was cancelled, in the sum of $3,445.00, with interest; ordered defendant to turn over to plaintiff the eight certificates of $1,000 each, free and clear of all claims, liens, and encumbrances; and rendered judgment for $2,194.00 dividends for the years 1907 to 1910 inclusive, due on the eight certificates, and on the $2,050 of certificates in the plaintiff's hands (less $22.50 paid directly to Henrietta), with interest; and found for defendant as to the $3,000 of certificates which were surrendered to the company outright.
    
      The circuit court reversed this judgment, finding and decree for the plaintiff, because the same was •not sustained by the evidence. Plaintiff now seeks to reverse the judgment of the circuit court.
    
      Mr. C. F. Taplin, for plaintiff in error.
    The defendant is here seeking to collaterally attack the standing of the present plaintiff as a trustee of the certificates of Henrietta Vance. It is a well-settled principle of law that an appointment of a trustee or executor by a probate court cannot be collaterally attacked if that court had jurisdiction of the subject-matter. Union Savings Bank & Trust Co. v. Western Union Tel. Co., 79 Ohio St., 100; First Natl. Bank v. Natl. Broadway Bank, 156 N. Y., 549, 42 L. R. A., 139.
    The will gives no right to the trustee to pledge, and this is so even -as to the property of Mrs. Cooper as to which the power of sale and reinvestment was given, for a power of sale does not include a power to pledge or mortgage. 27 Am. & Eng. Ency. Law (1 ed.), 225; 18 Am. & Eng. Ency. Law (1 ed.), 940; Wilson v. Maryland Life Ins. Co., 60 Md., 152.
    The cases are unanimous in holding that a party who knows or ought to know that he is dealing with a trustee deals at his peril and is put upon inquiry to ascertain if the action of the trustee is proper. O’Herron v. Gray, 168 Mass., 573, 47 N. E. Rep., 429; Strong v. Strauss, 40 Ohio St., 87; Third Natl. Bank v. Lange, 51 Md., 138; Ford v. Brown, 114 Tenn., 467, 1 L. R. A., N. S., 188; Duncan v. Jaudon, 15 Wall., 165; Shaw v. Spencer, 100 Mass., 382.
    The cases further hold that knowledge of the existence of a will, however obtained, charges the party with knowledge of the contents of that will. Caulkins v. Gas-Light Co., 85 Tenn., 683; Stewart & Duffy, Trustees, v. Firemen’s Ins. Co., 53 Md., 564; Marbury v. Ehlen, 72 Md., 206, 19 Atl. Rep., 648; Lowry v. Comm. & Farmers’ Bank, Taney, 310.
    The defendant company also failed to perform the duties imposed by law upon it as a corporation, in that it failed to protect one of its stockholders as it should have, upon presentation of her stock for transfer. 2 Cook on Corporations (6 ed.), Sec. 399; Magwood v. S. W. Railroad Bank, 5 S. Car., 379; Loring, Trustee, v. Salisbury Mills, 125 Mass., 138; Geyser-Marion Gold-Min. Co. v. Stark, 106 Fed. Rep., 558, 45 C. C. A., 467; Peck v. Bank of America, 16 R. I., 710, 19 Atl. Rep., 369.
    Since Russell took possession of the property and assumed to act as trustee under the will, the law will consider him as a trustee and hold him liable to the duties of one. Winder et al., Exrs., v. Scholey et al., Trustees, 83 Ohio St., 204.
    As to the effect of acts of minors, or those recently come of age, done at the request of one standing in loco parentis or in a fiduciary relation to them, see Berkmeyer v. Kellerman, 32 Ohio St., 239; Lane v. Reserve Trust Co., 10 C. C., N. S., 512; Noble’s Admr. v. Moses Bros., 81 Ala., 530; Espey v. Lake, 10 Hare, 260; Maitland v. Irving, 15 Sim., 437; Branch v. Buckley, 109 Va., 784.
    On the question of the power of attorney acting as a confirmation or ratification of all of the previous acts of Mr. Russell, such a confirmation is not binding as long as conditions remain the same, or if there was not independent advice; there must be a complete disclosure of the facts, independent legal advice and a knowledge of the party’s right to impeach the previous transaction, and also the confirmation must be for the cestui que trust’s benefit. 2 Pomeroy’s Eq. Juris. (3 ed.), Sec. 964.
    
      Messrs. Musser, Kirnber & Huffman and Mr. •F. H. Waters, for defendant in error.
    No matter from whence came the money to purchase the stock nor whose it might have been, the title to it passed to the savings and loan company, and there was taken, in lieu thereof, the certificates of stock in that company, in the name of Plenrietta Cooper Vance, before Martha Cooper died, and they became her sole and absolute property. Having the certificates issued in the name of Plenrietta Cooper Vance, and having her name entered upon the record of the savings and loan company as the subscriber therefor, constitute them her sole property without reg'ard to whose money was used for their purchase. 14 Am. & Eng'. Fncy. Law (2 ed.'), 1040; McDonald v. Donaldson, 47 Fed. Rep., 771.
    
      We contend that any provision of the will of Martha Cooper attempting to dispose of Henrietta C. Vance’s property in trust or otherwise, could only dispose of her own property and if she held any of Miss Vance’s stock as guardian or trustee, she could not dispose of or control it by a last will and testament. If she were a guardian, such relation terminated at her death, and likewise, if she were a trustee for the stock referred to, that trust relation ended and terminated with her death. Martha Cooper, therefore, having no authority by will to dispose of Miss Vance’s property or to create any trust with respect to it, it must necessarily follow that the plaintiff, Mook, as trustee, has no capacity or authority to maintain the suit. Page on Wills, Sec. 135; 1 Jarman on Wills (6 ed.), 73; Schouler on Wills (3 ed.), Sec. 28; 30 Am. & Eng. Ency. Law (2 ed.), 614, 615; Young v. Snow, 167 Mass., 287.
    The evidence in this case seems to show that Russell, if he received money from Martha Cooper for the benefit of Henrietta, which he invested in the shares of stock in controversy, invested it as agent for Henrietta Vance and not for Martha Cooper; and that, when he received the shares of stock, he received them as agent for Henrietta Vance. Rote v. Warner, 9 O. C. D., 536, 17 C. C., 350.
    So far as The Akron Savings & Loan Company is concerned, the evidence shows that Miss Vance recognized that agency and in fact, she executed for Russell and permitted it to come in the possession of the defendant in error, a complete and full written power of attorney, and said company had a right to rely on said power of attorney, in view of the fact that there is no evidence that such agency was ever revoked or in any manner withdrawn until the death of Russell. Aetna Ins. Co. v. Stambaugh-Thompson Co., 76 Ohio St., 138.
   Wilkin, J.

At the threshold, the defendant refers us to the circuit court’s finding that, “there is not sufficient proof to sustain the judgment of ' the court of common pleas' and the defendant says, that judgment, being based upon the weight of the evidence alone, cannot be reviewed by this court. That judgment is not based upon the weight of the evidence, but upon its insufficiency. The evidence is almost entirely documentary; there is no conflicting testimony to be weighed against the documents. We have simply to determine a question of law; that .is to say, what legal relations do the facts in the record establish; and what rights and duties spring out of those relations?

The answer being a general denial, excepting express admissions hereinbefore stated, challenges the capacity of the plaintiff to maintain the suit. This objection was not made in oral argument, but it is raised in the defendant’s brief. The duly authenticated copy of the proceedings in the probate court of Cuyahoga county establishes the fact of the plaintiff’s appointment and qualification “to act as the trustee of a trust estate created for the benefit of Henrietta C. Vance by the last will and testament of Martha Cooper deceased.” But the defendant, catching at the initial averment of the petition, which alleges that “the plaintiff is the duly appointed trustee, vice L. A. Russell, deceased,” makes the point that Russell was never appointed nor qualified as trustee under the will, and that Martha Cooper, during. her life, never held the funds nor the certificates of stock in the loan company as trustee for Henrietta.

The second question thus .raised is, what is the effect of the style in which the certificates were taken out by Martha Cooper, through her attorney? They are issued to “Henrietta Cooper Vance (Martha Cooper or other legal guardian may draw).” This is a declaration of an inchoate, passive trust; incomplete, (1) ' as a donation of the fund, because she retains dominion over it, and, (2) as a limitation or designation of the purpose of the gift, because it does not signify for what purpose or in what manner the donee is to enjoy the fund. It is an executory, passive trust. 2 Pom. Eq. Jur. (2 ed.), Secs. 1000, 1001, 988, 989.

Martha retained dominion over the fund, first by retaining possession of the certificates; and, secondly, by reserving power in herself to draw it out. In what relation or character did she reserve dominion ? As absolute owner ? Manifestly not, for she prescribes that, “other legal guardian may draw,” thus showing an intention to put the fund in ward or trust for the use of her granddaughter Henrietta. The word “legal” is suggestive; it indicates that she regarded herself as a trustee or a gMtm'-guardian, and the word “other” conveys the idea that she had in mind that the trust should pass to another custodian when her control should cease. Her successor might be a statutory guardian or a testamentary trustee, upon certain contingencies, and therefore she covers both characters by the use of the words “legal guardian.”

As the insertion of this parenthetic clause in the title of the certificates, creates an executory trust, we are not restricted to rigid legal rules in the interpretation of the language of the donor. Fortunately we have some extraneous clues to the meaning of her language. Mr. Russell, who was her legal adviser and who transacted this business for her, doubtless dictated these words to be written into the certificates. By conduct and correspondence he interpreted the language for us, in his letter to the company, saying: “Consider Martha Cooper as a guardian,” and the company adopted that construction of her relation to the fund. It does not lie in the defendant’s mouth to assert otherwise now. If any doubt still lurked in the form of these certificates, it is completely dispelled by the will.

This brings us to the third question: what was L. A. Russell’s relation to this fund and these certificates, at and after the death of Henrietta’s grandmother, Martha? He is nominated in the will as executor and trustee of the property, for the use and benefit of the beneficiary of the will, in trust, etc. Referring to her granddaughter Henrietta, she gives to her said executor, for her, (Henrietta) or for her benefit, till she be thirty years of age, “all such moneys as at the time of my death I shall or may hold in trust for said Henrietta, intending to make my said executor * * * my own successor in said trust for Henrietta.”

It is perfectly clear to us on the record, that the plaintiff was regularly appointed and fully qualified and empowered to bring this suit as the successor of L. A. Russell, who succeeded Martha Cooper as trustee of this fund. L. A. Russell was a testamentary trustee and acquired his authority from the will. The fact that he was not named as trustee in his letter of authority issued from the probate court is of no importance, and it affords the defendant no immunity from the demands of the new trustee appointed by the probate court to execute the trust defined by the will.

Fourth. Another point raised by counsel for the defendant is, that Russell was the mere agent of Henrietta. But he acted as a trustee. One month after her grandmother’s death, he sent the company a copy of the will, and wrote that he held the certificates in trust under the will and that the dividends should be paid to him thereafter as trustee. By the subscriptions to the transfers endorsed upon the certificates as well as by his subscriptions to the written pledges lodged with the company for the loans, the company was advised that it was dealing with Henrietta’s trustee. And as if to warn the defendant that- • it was lending him trust funds, 'he repeatedly reminded the company in his letters that he held the certificates in trust under the will and not otherwise.

Counsel for the defendant say in their brief: “The Loan Company finally made up its mind that the money represented by the certificates belonged to Henrietta Vance, and it required Henrietta to ratify all of Russell’s transactions, * * * and Henrietta, the cestui que trust, for whom Moolc is now trustee * * * ratified Russell’s acts.” This refers to the power of attorney.

At the time Henrietta gave that power of attorney, she was twenty-two.years of age, nevertheless she was not quite sui juris. She lived in the family of Russell, a lawyer, prominent in the city of Cleveland, and a great friend of her father, Dr. Reuben A. Vance, deceased. “It was out of this friendship that the dependence of the family on Mr. Russell came,” says a witness, a lawyer of Cleveland, who knew the family for twenty years after the father died. Asked about her ability to transact business, this witness said: “She would need a strong friend. When she was a little girl she was very severely hurt and had an illness, from which she seemed never to fully recover. She was never strong, always puny, weak and. anaemic. She is not quite as well. able as the average woman to manage, her affairs.”

The defendant called Henrietta as a- witness against herself. She had lived with Mr. Russell as a member of his family about eight years, when he took her to his office and' asked her to sign this paper. She merely glanced at- it, and did not know its contents. He told her it' gave him power to take money out of the Akron bank and place it in a Cleveland bank, or elsewhere at will. She did not know then that $11,500 of the certificates were cancelled or pledged to The Akron Savings & Loan Company. She had no advice, no person was present except Mr. Russell, and he did n®t- read it to her. The reason she did not read' it was, she regarded Mr. Russell as a father; she had implicit confidence in him. •

Russell stood to this girl in loco parentis; her relation to him was not only one of trust and confidence but dependence. This power of attorney was an imposition and a fraud upon her.

Fifth. How does it affect the defendant? The defendant knew that the grandmother had placed the funds in custody for the girl till she should arrive at the age of thirty years; that Russell dreaded to explain to her that he had converted and used her funds, and that he deemed it better for him and for the company, if that shift were not attempted. This was enough to put the defendant on inquiry and charge it with knowledge of the girl’s dependent situation, and of the vice of inducing her to approve Russell’s defalcation and to acquit the company of all responsibility. Nay, more, the defendant must have contemplated the compelling' temptation Russell would be under to deceive and beguile his unsuspecting ward.

Aside from this consideration, there is one conclusive answer to the defendant’s plea of ratification. Henrietta herself had no power over the corpus of the fund till she be thirty years of age, which she will- not be till November 22, 1914.

Sixth. The last palliation offered by the defendant deserves a passing notice. It is that the bylaws of the company and a statute of the state “authorize exactly what it did, namely, withdrawals of the stock by borrowing and putting up certificates as. collateral for loans, and in the event the loan was not paid subsequently, to cancel the pledged certificates.” This is a bald petitio principium; it assumes that the borrower owns the stock in his own right and has the right to pledge it for his own debt or exchange it for money for his personal use. There could be no by-law nor statute to empower a trustee to deal thus with securities of an infant cestui que trust, upon his mere volition, and to appropriate the money to himself.

This reference to its powers as a corporation calls attention to its Responsibilities and duties. It received Henriétta’s money in trust and assumed to protect and preserve it. When it lent or exchanged the money to L. A. Russell for his personal use, it violated a trust enjoined upon it by the law of the land, aside from any trust declared in the will. For this reason, as well as because it had full and ample knowledge of the trust-character of the investment, and received the money impressed with the trust limited in the will till the beneficiary be thirty years old; and because it permitted and assisted the faithless trustee to convert the securities and squander the trust-estate, the defendant must repair the loss and restore the money, and account for accumulated dividends and interest.

We cannot adopt the suggestion that three certificates were cancelled outright with the view of reinvestment. The conduct of the defendant in this whole affair is of one piece, and it does not invite our confidence, since there is no convincing evidence of defendant’s diligence and fidelity. The judgment should have been according to the prayer of the amended petition in both courts below.

Judgment of the circuit court reversed, that of the common pleas modified, and judgment will be entered here for the full amount of the plaintiff’s claim as prayed for.

Judgment for plaintiff.

Shauck, C. J., Johnson, Donahue, Wanamaker and Newman, JJ., concur.  