
    Moeller, Archbishop of Cincinnati, et al. v. Poland et al., Exrs., et al.
    
      Duty of trustee to cestui que trust — One of absolute good faith— Honest motive not sufficient, when — Specific enforcement of executory contract — Between trustee and third party — Without valuable consideration — Not decreed by court of equity, when.
    
    1. Inasmuch as a trust estate exists for the benefit of the cestui que trust, it is the duty of the trustee to administer the trust respecting the property of the cestui que trust strictly within the terms of the power given and for the benefit of the trust. And .while a coúrt of equity will treat a trustee with indulgence, and where he has acted in absolute good faith in all respects, will sustain him if it can be done without violating equitable rules, yet he will not be upheld in a course palpably arbitrary and unreasonable, for it is not sufficient that he be honest, and from a strictly moral standpoint act in good faith; he is bound in law to exercise diligence and to act reasonably.
    2. Where, with respect to the disposition of the property of ■ the trust, a trustee’s judgment is finally to control, and yet there be .devolved upon him by the nature of the trust the duly to take reasonable means to enable him to arrive at a correct and reasonable judgment, and such duty be entirely neglected ' by the trustee, the mere presence of good intention and absence of bad motive will not be sufficient to relieve him of a charge of breach of trust.
    3. A court of equity will not decree specific enforcement of a contract by a trustee bargaining away the property rights of his cestui que trust, by a contract executory in its character and . without valuable consideration, and in behalf of a party who was fully aware of the character of the trust and who in no way changed position or conduct in consideration of the acts or promises of the trustee.
    (No. 10927
    Decided June 8, 1909.)
    Error to the Circuit Court of Hamilton county.
    The present controversy in error grows out of a suit brought May 27, 1905, in the court of common pleas of Hamilton by the defendants in error Law-..fence Poland and Joseph B. Butler, executors of the estate of Gregory Rossiter, deceased, against the plaintiffs in error, Henry Moeller, archbishop of Cincinnati, The St. Joseph’s Orphan Asylum Association, and others, legatees named in the will of Gregory Rossiter, for a construction of the will and directions as to distribution.
    It is averred in the petition that the will was executed July 5, 1898; that the testator died June 5, 1899, and that the will was admitted to probate June 26, 1899. By the second item thereof the testator gives to his sister, Mary L. Rossiter, all the income, rents, profits and use of all his real estate and leasehold property wherever situated, during her natural life with full power to sell or lease the property No. 24 East Eighth street, Cincinnati; also all real estate he may have in Minnesota. The proceeds of sale of which, she will hold in trust as my estate and if she invest it she is to have all the income therefrom as her own during her life. Then follows a gift to the Roman Catholic Asylum, Cumminsville, five hundred dollars cash; to the Little Sisters of the Poor five hundred dollars cash; to the Catholic Foundling Asylum five hundred dollars cash, and to the pastor of St. Xavier’s Catholic Church on Sycamore street one thousand dollars-cash to be used by him.for the benefit of the church. The third item makes a gift of money to a nephew, a like gift to two nieces, and payments of cash for life to two cousins. The fourth item provides that if his sister Mary shall live until July 1, 1910, at which time Mr. Mulhauser has privilege of buvng our property corner Fifth and Elm streets, Cincinnati, and shall buy it, then Mary mav invest his (testator’s) share as she sees proper in the name of my estate, she to have the income during her life. And Mary is recommended to consult the archbishop of Cincinnati as to its proper investment. Then follow items five and six, viz:
    “Fifth. After the payment of all bequests herein made I do give all the remainder of my estate of every description, cash, stocks, bonds and credits (except proceeds of sale of real estate in Cincinnati) to my sister, Mary L. Rossiter.
    “Sixth. After the death of my sister, Mary L. Rossiter, and myself, I give and bequeath to the Most Rev. W. H. Elder, the Catholic archbishop of Cincinnati, and his successor in office, all my real estate and personal property of every description, wherever situated, that I .may own or be entitled to at the time of my death, to be by him or his successor in office, to be held or disposed of in such way as he or his successor in office may choose for .the benefit of the Catholic Orphan Asylum now located at Cumminsville, Cincinnati, or wherever else it may be moved to. I most humbly beg that the orphans and the devoted Sisters of Charity in charge of them, remember me in their prayers.”
    Then follows provision appointing his sister Mary executrix without bond, and in case she •should be unable to serve, the present executors, Mr. Lawrence Poland and Mr. Joseph B. Butler, without bond.
    The petition suggests that while clause five vests an absolute estate in Mary L. Rossiter, that considered in connection with clause six it vests nothing but a life estate in her, and that at her death, by its terms, it goes to Most Rev. Henry Moeller, Catholic archbishop of Cincinnati, as successor to Most Rev. 'William H.'Elder. It is also suggested that by the terms of item five Mary L. Rossiter takes the entire estate of Gregory Rossiter, subject to the payment of the bequests and the legacies provided in the will.
    At the death of Gregory Rossiter the Most Rev. William H. Elder was the Catholic archbishop of Cincinnati, and continued as such until after the death of Mary L. Rossiter. On June 30, 1899 (there being at the time an announced intention to contest the will of Gregory Rossiter on the part of certain nephews and nieces), archbishop Elder and Mary L. Rossiter agreed in writing upon a construction of the will as follows:
    “Whereas, the last will and testament of Gregory Rossiter, deceased, was duly probated on June 26, 1899, case No. 48064, Hamilton county, Ohio, probate court, and
    “Whereas, some doubt or question may exist or hereafter arise as to the true meaning or construction to be given to items five and six of said will as to the legal disposition of the personal property of said decedent,' and.
    “Whereas, it is manifest to our minds that the decedent in referring to personal property in said item six intended thereby to mean and refer to personal property growing out of the investment of the proceeds arising from the sale of real estate, if any should be sold by said Mary L. Rossiter, and to no other personal property, or intended to refer to leasehold property as personal property.
    “Now, therefore, know all men, that we, the undersigned, Mary L. Rossiter, sister of said decedent, and Most Rev. William Henry Elder, Catholic archbishop of Cincinnati, Ohio, a beneficiary trustee under said will, for and in consideration of the avoidance of litigation and in consideration of mutual concessions tending thereto, hereby agree for ourselves and those who may come after us, that the real and true construction and meaning to be given to said items five and six and to all of said will shall be as follows:
    “First. That Mary L. Rossiter shall have the use of and the income of all the real estate of the decedent during her lifetime and such other power jver the same as the will provides.
    “Second. That said Mary L. Rossiter shall have all the personal property of the decedent, including cash in hand, stocks, bonds and credits and other personal property absolutely as her own.
    “Third. That at the death of said Mary L. Rossiter the real estate of the decedent shall pass to and vest absolutely in. the Most Rev. William Elder, archbishop, as aforesaid, or his successor in office, in trust, nevertheless, for the’uses and purposes set forth in said will.
    “Fourth. That after the death' of said Mary L. Rossiter any personal property, the proceeds from the sale of real estate of the decedent made by said Mary L. Rossiter under authority of the will, or any real estate or securities in which such proceeds shall be invested, shall pass to and vest absolutely in said Most Rev. William Henry Elder, archbishop as aforesaid, or his successor in office, in trust, nevertheless, for the uses and purposes set for in said will.
    “In witness whereof we have hereunto set our hands in duplicate this thirtieth day of June, 1899.
    “Mary L. Rossiter,
    “Wit.liam Henry Elder,
    “Catholic Archbishop of Cincinnati.”
    
      It is suggested that said archbishop had no right or authority in law and under the terms of said will to make such an agreement, and that it has no binding force or effect upon said Cumminsville Orphan Asylum or said St. Joseph’s Orphan Asylum Association, which on the thirtieth day of June, 1889, had the management of said institution under the supervision and direction of said Most Rev. William H. Elder, and still has the same under the supervision and direction, of the Most Rev. Henry Moeller, Catholic archbishop of Cincinnati.
    It is further suggested that by the terms of the trust reposed in him by said will, and also by virtue of his authority as Catholic archbishop of Cincinnati, and his plenary jurisdiction over all religious and ecclesiastical property and institutions, and more especially said orphan asylum, that he had full authority to enter into the agreement above set forth.
    Wherefore plaintiffs pray that said defendants may be required to answer and set up any claims they may have under said will, or otherwise in regard thereto; that the same may be determined and settled and the court give judgment and direction in regard to the true construction of said will and especially of the clauses above referred to and as to what plaintiffs’ duties are in the premises, and shall order a proper distribution of the estate of said Gregory Rossiter and for all further and proper relief.
    To this petition the plaintiffs in error, Henry MndVr, archbishop, and The St. Joseph’s Orphan Asylum Association filed answer and cross-petition, averring in substance that, by the true construction of the will and particularly of items two, four, five and six thereof, there was vested in .Mary L. Rossiter, after the payment of certain small money legacies to their co-defendants, an estate for her life in all the real and personal .property of every description of which Gregory Rossiter was the owner at his death, and an estate in remainder in fee in the said William Henry Elder, archbishop of Cincinnati, and the said Henry Moeller, as his successor in office, in trust, to be held or disposed of in such way as he the said William Henry Elder, or his successor in office, the said Henry Moeller, might choose, for the benefit, however, of the Catholic Orphan Asylum, then and now located at Cumminsville. The ag'reement of June 30, 1899, set forth in the petition, was without consideration, and was entered into inadvertently and without independent advice by the said Elder; that as such trustee for said Orphan Asylum, or as the archbishop of Cincinnati, the said William Henry Elder had no authority to enter into said agreement. And defendants pray the court for a decree in conformity to the above facts.
    A reply was interposed by plaintiffs denying that the agreement was without consideration and denying that it was entered into inadvertently, and averring that it was executed after full consideration, at a time when said Elder was in possession to the fullest extent of his mental qualities, in good faith, for a consideration, and for the best interests of those sought to be benefited by the will.
    Defendant Harriett H. Hartnett, for herself and as executrix of Mary L. Hartnett, deceased, filed answer and cross-petition averring the true construction of the will to vest in Mary L. Rossiter absolute title to all the personal property of which Gregory Rossiter died seized; that after the making of the contract with archbishop Elder set forth in the petition Mary L. Rossiter entered into a vigorous and active defense of the validity of the will which was threatened with a contest at the abpve date, suit for such purpose being instituted shortly thereafter, incurring large expense, and was induced to do so in part at least by the execution of said agreement. A decree was prayed for conformably with the allegations of this answer.
    Afterward an amendment to the petition was filed by plaintiffs, averring, among other things, that the will was prepared and written by the testator himself, he being a man of advanced years and not learned in the law, and not having the aid of any one learned in the law; that his nearest living relative was his sister Mary L. Rossiter; that he also had living four nephews and two nieces, children of a deceased brother, three of whom were mentioned in the will, and cousins of his own blood residing in New York, also mentioned in the will; that at the date of the will, which was executed about one year before his death, the testator was, jointly with his sister, the owner of real estate at Fifth and Elm streets, Cincinnati, then leased by a perpetual lease to one Henry Mulhauser, with privilege of purchase for $100,000 after July 10, 1910; also certain real estate on East Eighth street, Cincinnati, negotiations for the sale of which were pending at the time of the execution of the will, so that there was a possibility of said real estate being converted into personal property; they were also jointly interested in property in Minnesota. All which real estate was subject at any time to be converted into personalty by suit and sale in partition; that at the time of his decease his estate amounted to something over $70,000, the real estate being valued at about $60,000 and the personalty at about $15,000. According to the true construction of the will the legal title to the real estate, at the death of the testator, vested' in archbishop Elder in trust for the St. Joseph’s Orphan Asylum, he being at the time the sole trustee of said Asylum; that by the terms of the will the real estate vested in him as trustee for himself as trustee for said Orphan Asylum; that by virtue of his office as archbishop the Orphan Asylum was for all purposes under his absolute control for the uses and purposes for which it was established, and his authority unlimited except by the uses and purposes for which it was established.
    At the time of the execution of the agreement a suit to contest the will was threatened, and was in fact soon thereafter instituted; that said Elder knew of the threat and that to engage in such controversy would be highly prejudicial to all the beneficiaries and might cause the will to be set aside and cause him as trustee to lose all that he or they might otherwise obtain under the will, and this, among other things, was the consideration for the execution of the agreement. The testator could not have consulted with those in the active management of the Asylum, they numbering some twenty-one persons, without in some measure making public the alleged defect in said will and thus jeoparding his and their rights; nor was it necessary for him to do so.
    Jn fact and in law the said Elder was also the cestui que trust under said will, the execution of the agreement was for the best and the sole interest of his cestui que trust; was executed, by him in good faith and was a beneficial exercise of the power given to said Elder under the will as well as under the laws of the Catholic Church and of the land. After the execution of the agreement and after the institution of the suit to contest the will, Mary L. Rossiter engaged in an active defense of the validity of the will, incurring* large expense in so doing, and was induced to do so in part in consideration of the execution of the agreement, resulting in the validating of the will and thus securing to the Asylum its full rights thereunder.
    An answer to the amendment to the petition, filed by the plaintiffs in error, admitted the allegations respecting the making of the will and age of the testator; also the statement as to his relatives; also the statement as to the location and character of his property interests; also the allegation respecting the bringing of an action by the nephews and nieces to contest the will, which action resulted in a verdict and judgment sustaining the will, and- denying all other allegations for want of knowledge as to their truth.
    The cause was tried upon these pleadings in the common pleas and from the judgment of that court appealed to the circuit court. By the decree of that court the will was construed as giving a life estate only in the personal as well as the real estate to Mary L. Rossiter, the court further adjudging that the contract betAveen archbishop Elder and Mary L. Rossiter Avas valid and ordering distribution accordingly. Henry Moeller, archbishop, and The St. Joseph’s Orphan Asylum Association, bring error, filing in this court a bill of exceptions and resting their case upon'that and on the pleadings.
    
      Facts are stated in the opinion. .
    
      Messrs. Stephens, Lincoln & Stephens, and Mr. Denis F. Cash, for plaintiffs in error.
    The agreement between Mary Rossiter and archbishop Elder, construing the will of' Gregory Rossiter, was without legal force and effect.
    • The contract concedes to the sister all she claimed — the- entire -matter in controversy. Miss Rossiter did not bind herself to do anything, either to forbear bringing suit or to defend her brother’s will, either in the contract or before it was executed. She got all she claimed and promised nothing in return. There is, therefore, no mutuality in the contract, and for that reason it must fail.
    But even if we concede that there was a technical consideration sufficient to support a contract, we submit that archbishop Elder, as trustee, was without power to make such a contract. Fie took no personal or beneficial interest under the will of Gregory Rossiter, but was constituted trustee, and charged with the duty of holding and disposing of the property received “for the benefit of the Catholic Orphan Asylum.” While he was clothed with a discretion as to the way in which he migirt expend it for his ^cestui que trust, he was given no other discretion. Certainly he was given no power to give away or concede without equivalent the rights of the charity.
    The proposition that a trustee cannot concede or give away the rights of a cestui que trust is so elementary that it has never been contested, and it is difficult to find adjudicated cases upon the matter.
    The power of a trustee over the legal estate or property vested in him, properly speaking, exists only for the benefit of the cestui que trust. Story’s Equity, section 977; Stoddard v. Smith, 11 Ohio St, 589.
    He cannot divest himself of the trust by conveying or assigning the property away to third persons unless the trust itself is for the very purpose of a sale or other disposition; and even then he can only dispose of the property in pursuance of the trust and to carry out its objects. 3 Pomeroy’s Equity Jurisprudence, section 1067; Holgate v. Eaton, 116 U. S., 33; Armstrong v. Robarás, 81 Mo., 445; Morris v. Thomas, 17 111., 112.
    He cannot make a contract to the disadvantage of the trust estate. Mayrant v. Guiguard, 3 Strobhart Eq. (S. Car.), 112.
    Pie cannot prejudice the cestui que trust by his admissions, declarations or negligence. 2 Perry on Trusts, section 476; Caldwell’s Exrs. v. Prindle’s Admr., 19 W. Va., 604; Thomas v. Bowman, 29 111., 426; McKissick v. Pickle, 16 Pa. St., 140; Eitelgeorge v. Building As'sn., 69 Mo., 52.
    .The trustee of a deed of trust cannot, without the consent of the beneficiary, compromise or yield a right already accrued to the trust. Bissell v. McKinnon, 121 N. Car., 186; 2 Perry on Trusts, section 483.
    The case is not one 'of the compromise of a doubtful claim; but the authorities are that a trustee has no general power to compromise claims, and that his power is only to make such compromises as the court can see are clearly beneficial to the trust estate, and which it would have authorized had it been appealed to beforehand. 2 Beach on Trusts and Trustees, section 455; 2 Perry on Trusts, section 482; 28 Am. & Eng. Ency. Law (2 ed.), 983.
    
      Under the true construction of the will of Gregory Rossiter his sister took a life estate in his personal property, and the archbishop the remainder in fee, as trustee for the orphan asylum. If item fifth had not been qualified by item sixth, so far' as his personal estate was concerned, we would admit that Mary Rossiter took an absolute estate in all his cash, stocks, bonds and credits, except proceeds of sale of real estate in Cincinnati. But inasmuch as the bequest of her is followed by an equally positive bequest to the archbishop, as trustee, after her death, it follows, according to the well-settled rule, that the sister took a life estate and the trustee a remainder in fee after her death. No other interpretation would give any effect to the positive language of item sixth. Robbins v. Smith, 72 Ohio St., 1; Page on Wills, sections 470, 597; Constable v. Bull, 3 De G. & Sm., 411; In re Sandford, 1 Ch. Div. (1901), 411; Smith v. Bell, 6 Peters, 68; Stone v. McEckron, 57 Conn., 194, 17 Atl. Rep., 852; 30 Am. & Eng. Ency. Law (2 ed.), 741; Baxter v. Boyer, 19 Ohio St., 490; Johnson v. Johnson, 51 Ohio St., 446; Hamlin v. Express Co., 107 111., 443.
    It is well settled in Ohio and elsewhere that personal property, even money, may be limited to one for life and afterwards to others. King v. Beck, 15 Ohio St., 559; Pruden v. Pruden, 14 Ohio St., 251; Smith w Bell. 9 Extern. 68; Smith v. Van Ostrand, 64 N. Y., 278; Page on Wills, section 596.
    A devise or bequest of property without words of limitation, does not prevent a gift over as repugnant. Howe v. Fuller, 19 Ohio, 51; O’Conner v. Rowland, 73 Ark., 422, 84 S. W. Rep., 472.; 
      Hambel v. Hambel, 75 N. W. Rep., 673; Defreese v. Lake, 109 Mich., 415, 67 N. W. Rep., 505; Noble’s Estate, 182 Pa., St., 188; 37 Atl. Rep., 852; Kenistons Will, 73 Vt, 75, 50 Atl. Rep., 558.
    
      Mr. Otway I. Cos grave, for defendants in error.
    All the authorities agree that when the absolute estate has been conveyed in one clause of the will it will not be cut down or limited by subsequent words, except such as indicate as clear an intention as would the words used in creating the estate. Words which merely raise a ■ doubt or suggest an inference will not affect the estate thus conveyed, and any doubt which may be suggested by reason of such subsequent words must be resolved in favor of the estate first conveyed. Flick v. Oil Co\, 188 Pa. St., 317; Estate of Granniss, 142 Cal., 1; McClellan v. Mackenzie, 126 Fed. Rep., 701; Bailey v. Sanger, 108 Ind., 264; Barks-dale v. White, 28 Gratt., 224; Freeman v. Colt, 96 N. Y., 63; Marshall’s Exrs. v. Hadley, 50 N. J. Eq., 547; Langman • v. Marbe, 156 Ind., 330; Larwill v. Ewing, 73 Ohio St., 177.
    When a residuary clause in a will admits of a limited application as well as one of a more general character, it should be given that construction which will be most favorable to the heir-at-law. Davis v. Davis, 62 Ohio St., 411; Bane v. Wick, 19 Ohio, 328.
    The rule is, that when an estate is devised with an absolute power of disposal, a devise over of what may remain is void, but that where a life estate only is given in express words to the first taker, with an express power In a certain event, or for a certain purpose, to.dispose of the property, the. life estate .is not, by such a power,, enlarged to a fee or absolute right, and the devise over is good. Home v. Lippardt/70 Ohio St., 261.
    An interest or estate in one clause given in clear and decisive terms is not to be taken away or cut down by a doubt as to the extent of or inference from a subsequent clause, nor by any subsequent words less clear and decisive than the gift. Collins v. Collins, 40 Ohio St., 353; Parker v. Parker, 13 Ohio St., 95; Pendleton v. Bowler, 27 W. L. B., 313.
    Very recently the Cuyahoga circuit court in the case of Steuer v. Steuer, reported in 8 C. C, N. S., 71, 'summarized the Ohio decisions on the question of repugnancy in wills. The reasoning and conclusions of the court are well worthy of careful consideration.
    The limitation is void as well of personal as of real property. Pickering v. Langdon, 22 Me., 413; Cole v. Cole, 79 Va., 252; Holmes v. Godson, 8 De G. M. & G, 152.
    Where the testator gives to the first devisee full dominion and control over the estate, and then under the form of a limitation over undertakes to make, as it were, a will for the first devisee, this, the testator can not do. Baxter v. Boyer, 19 Ohio St., 490; Davis v. Boggs, 20 Ohio St., 550;. Stuart v. Walker, 72 Me., 145.
    The rule is well settled by authority and precedent that when there is a devise or bequest simpliciter to one person and in case of his death to another, the contingency referred to is a death in the lifetime of the testator. Fonder v. Ingersoll, 127 N. Y., 473; McClellan v. Mackenzie, 126' Fed. Rep., 701; Webb v. Lines, 57 Conn., 154; Jones v.. 
      Webb, 5 Del. Ch., 132; 2 Jarman on Wills (6 fed.), 690; Howard v. Howard, 21 Beav., 550; Morrison v. Truby, 145 Pa. St., 540; Estate of Biddle, 28 Pa. St., 59; Elliott v. Smith, 22 Ch. Div., 236; Stratton v. McKinnie, 62 S..W. Rep., 636; Meacham v. Graham, 98 Tenn., 190; Patterson v. Earhart, 6 O. D., 16.
    Where a discretion is vested in a trustee, where there is no semblance of dishonesty, no taint of unfairness, the action of the trustee of the character in this case has been sustained. Reasonableness in the exercise of discretion is all that is required, and when this is apparent the court will sustain the action of the trustee. The test is the good faith of the trustee and the intent to benefit the cestui que trust. Beach on Trusts, 455. A trustee may generally, acting in good faith, release or compound a debt due to his trust estate. Perry on Trusts, 482; Lewis on Trusts, 591.
    A court of equity will not interfere with the exercise of a discretionary power while trustees are acting in good faith and with ordinary prudence and reasonableness. Tiffany & Bullard on Trusts, 733; Chaplin on Trusts, 469, 471; Gelston v. Shields, 16 Hun, 143, 78 N. Y., 275.
   Spear, J.

We have here a controversy involving only the personal property mentioned in items five and six of the will, it being conceded that Mary L. Rossiter took a life estate in the real property and at least a life estate in the personal property, and that archbishop Elder and his successor, archbishop Moeller, a remainder in fee in the real estate in trust for The St. Joseph’s Orphan Asylum.

By the record and argument of counsel two questions are presented. Does the remainder of the personal property go, by proper construction of the will, to Mary L. Rossiter or to archbishops Elder and Moeller, as trustee for the Asylum? If to the latter, then is the agreement entered into between Mary L. Rossiter and archbishop Elder June 30, 1889, effective to give such remainder to Miss Rossiter ?

1. The construction of the will. It was the judgment of both the common pleas and circuit courts that while item five of the will, if it stood alone, would vest absolute title to the whole personal estate in Mary L., after payment of the previous bequests, yet considered in connection with item six, and considering the entire will, taken up by its four corners, to use a common phrase, an intention on the part of the testator is manifest to give to his sister a life estate in the real estate and the use of the personal property for life, with a remainder of the whole estate, personal as well as real, to archbishop Elder and his successor in trust for The St. Joseph’s Orphan Asylum. With this conclusion we agree. The case is reported and the question fully and ably discussed by Swing, J., in 4 O. L. R., 337, and in a brief opinion by Smith, J., in the circuit court in 9 O. C. C., N. S., 535, the latter court resting its conclusion largely upon Robbins v. Smith, 72 Ohio St., 1. The disposition of the question by these two courts seems to us so obviously well founded that we are quite content to rest our conclusion upon those reports, taken in connection with the terms of the will, and do not consider -it necessary to take space with further elaboration of the question here, although it has been very ingeniously argued pro and con by the learned counsel.

2. The contract. Each of the courts below was of opinion that the agreement was entered upon in the utmost good faith, under circumstances showing an emergency, and for the apparent benefit of the beneficiaries under the will, including the Orphan Asylum, and ought for these reasons to be sustained and given effect, and that the authorities on the subject of trusts justify a judgment validating such an agreement, and therefore that this contract should be enforced. Whether or not this conclusion ought to be affirmed depends upon the evidence before the court. There is no finding of facts by the circuit court separate from the conclusions of law, and we are remitted to the bill of exceptions to ascertain what the evidence before that court established. Fortunately there is no conflict in the evidence bearing upon the essential and controlling facts. To sustain the contract two essentials must have been established. One that it rests upon a valid consideration and possesses the element of mutuality, and another that the archbishop was capable in law of making such a contract. The facts relating to the making of the contract rest largely upon the testimony of Mr. Otway J. Cos-grave, and may be briefly summarized. A few days after the decease of Gregory Rossiter, which occurred June 5, 1899, his sister Mary L. Rossiter and Mr. Cosgrave, a practicing lawyer of the Cincinnati bar, went to the box at the safe deposit company and took out the will. Miss Rossiter, on learning its contents, was much irritated, saying it was a foolish will. The lawyer declined to give an opinion as to the proper construction of the will, saying, however, that he didn’t believe the brother intended to make it a mockery by giving her something which amounted to nothing. He cautioned her to be patient, saying to her that possibly the matter might be adjusted, and that they would take it up with the archbishop. Soon thereafter he saw the archbishop, giving him a copy of the will, and having a conference with him, saying that he took the liberty of not making' the fact of the contents of the will public because a repugnant or inconsistent will would throw doubt on the mental character of the testator; saying also that he didn’t want the archbishop to accept his judgment or advice but to consult an attorney .and be advised by him, and whatever he then thought right and best, to do. He also called the archbishop’s attention to different parts of the will, especially to items five and six, apparently revoking by item six what was given by item five, expressing the further idea as a lawyer that perhaps technically that is what the testator has done, but he didn’t think he intended to do that. It was in this connection that he advised the archbishop to consult his lawyer and go with him over this and take his advice; that he (Cosgrave) represented Mary, and of course was for his client. A week or so later Miss Rossiter came to Mr. Cos-g'rave, who drew up the agreement and took it to the archbishop and left it with him.

The agreement was executed in duplicate June 30, 1899. Accompanying the duplicate of the agreement returned to Miss Rossiter archbishop Elder addressed a letter of same date to her containing this statement: “There is no need for me to consult an attorney about the signing of the enclosed paper. The matter is clear in itself."’ And the testimony shows that although the archbishop had at the time a legal adviser, he, in fact, did not consult him as to this matter.

The will was admitted to probate June 26, 1899.

The record shows that, by the decrees of the Third Plenary Council of Baltimore, which is the law regulating Catholic church affairs in the United States, and therefore binding upon the archbishop of Cincinnati, when there is a question of disposing of the property or funds belonging to the diocese, or of doing that which has the appearance of an alienation of church property, the bishops are free to act if the amount does not exceed five thousand dollars; but when the sum involved exceeds that amount, then the advice of the consulters must be obtained, and having obtained that, permission must be sought from the Ploly See. The board of consulters, so-called, is an advisory board to the archbishop whom by the decrees he was required to consult in matters of this kind involving over five thousand dollars. He is required to take the counsel and advice of this board, but it is for him to determine finally. Some of the deeds for church property vest the legal title absolutely in the bishop, his heirs and assigns; others do not, but all are in fact in trust for the benefit of the institutions or the churches which have been established.

It is shown that archbishop Elder did not consult any of these consulters respecting the matter; nor did he consult the officers of the Asylum Association having the management of the financial affairs of the Asylum, as was his habit in regard to matters connected with that institution; nor with his successor, the present archbishop, who at the time was his secretary and bore close relations with his superior. This gentleman did not learn of the transaction for years after.

As a result of this showing regarding the essential facts, what ought to be the conclusion of law? With respect to a consideration necessary to support the agreement of the archbishop to cede away the rights of his cestui que trust, it must be conceded that the expressed terms of the paper are at best shadowy. “For and in consideration of the avoidance of litigation and in consideration of mutual concessions tending thereto” is the language. What concessions? The paper is silent. What right or advantage did Miss Rossiter, by this paper, give up that she before possessed? She had made no claim at any time, and did not then, to a larger interest in the real estate than a life estate which is distinctly provided in the will. As to “mutual concessions” what are they? As to this the paper is equally silent. If the claim of consideration is supposed to rest on mutual advantageous promises then clearly we must look outside the paper for them. And when we look to the oral testimony for such promises they seem to elude us. Was there a promise 'to forbear bringing suit to construe the will, or to contest it? In his testimony Mr. Cosgrave disclaims any purpose on his part to bring suit and any knowledge of any such purpose on the part of' Miss Rossiter. He also disclaims having knowledge of any other agreement than that embraced in the written paper. Whatever agreement there was between the parties he attempted to embody in the paper to the best of his ability. She would (but for the will) have had one-half of her brother’s property absolutely, while as it was she got nothing. “I felt,” he says ‘'‘and still feel it was a wise adjustment.”

Coming again to the matter of promises, what promises did Miss Rossiter make in the paper or out of it? We have failed to find any expressed. Is any to be clearly implied? True, there was, at the time of the agreement, danger of a suit to contest the will, and, equally true, if such a suit should prove successful, the Catholic interests would suffer serious detriment. But how do those facts aid in supplying a consideration for the contract? That is, how do they show any consideration moving from Miss Rossiter to the archbishop? What did she do contemporaneous with or subsequent to the making of this agreement which can be fairly attributable to the execution of that paper? She did, indeed, oppose vigorously the effort of the nephews and nieces to break the will, keeping up that opposition to the very last and with such persistency as to prevent any possible compromise of the case. She did this by her testimony and in other ways. But this was the line of conduct which she had mapped out for herself even before the will was probated, and while the question of the will being admitted to probate and record was still undetermined. A favorite nephew whom she loved had, before the probate of the will, turned against her and joined his brothers and sisters to fight the will and she was very much incensed against him and on his leaving gave him her left hand. From that time on she was anxious to maintain the will, and said she would spend every penny of her brother’s fortune to sustain it. This occurred between the time the will was offered for probate and the probating thereof. All this appears from the testimony of Mr. Cosgrave. It appears further by his testimony that he could not truthfully say that the concessions made by archbishop Elder as to the personal property influenced her in her treatment or defense of the will; and when asked if the real object of getting the archbishop to make the agreement respecting the personalty was that she would vigorously fight for sustaining the will, the witness frankly answered: “No, I wouldn’t say that;” but she was provoked.' It is not shown that she obligated herself to do, or to refrain from doing, anything. And if it had been attempted by the archbishop to specifically enforce any oblig-ation against her growing out of this 'contract, it would be difficult to suggest any possible relief that could have been accorded, or even in reason demanded, or any relief by way of damages for breach of contract.

There remains the question of the power of the archbishop to enter into this agreement. He was trustee for the Orphan Asylum. By the sixth item of the will the remainder of the personal property is given to archbishop Elder, and his successor in office, to be held or disposed of in such way as he or his successor in office may choose for the benefit of the Orphan Asylum. The power of disposition thus given, although in broad terms, cannot be construed as being absolute and unqualified. The dominant idea is that any disposition of the property must be for the benefit of the Orphan Asylum, for the trust exists only for the benefit of the cestui que trust, and by implication at least any attempt at disposition of the property would be expected to be in accordance, as to method, with the established manner of control, disposition and use of the property of the cestui que trust, the Asylum. It is not contended that the archbishop was actuated by any but the best of motives. It is probable, as counsel claim, and especially as shown by the archbishop’s letter to Miss Rossiter, that he believed a proper .construction of the will would give to her the absolute ownership of the personal property, and being convinced upon that point he willingly did that which he considered was right in itself and was calculated to gratify the sister of a brother who had done so much for his cestui que trust. But in this conception as to the will, as we have found, he was mistaken. In this sense the act was inadvertently done: He could not have realized that he was thus parting, or undertaking to part, with a valuable interest of his cestui que trust, for he was of opinion that the Asylum had in fact no interest in the personal property. He was thus induced to act on a mistaken belief which, had the matter been submitted to a court, would not have met its sanction, and to dó an act which the court would in all probability not have authorized. Being so thoroughly satisfied in his own mind, the archbishop took no pains to conform to the usual and indeed the required method with respect to the exercise of his own authority. He did not consult either his cestui que trust as represented by the officers of the Association which had the business of the Asylum in charge, nor with the consulters whom by the law of the church it was his duty to consult, nor with his legal adviser, or any adviser, for that matter. With due respect to the learned courts below we think there was no emergency in the present case which called for hasty action, a condition held to be controlling in some of the cases cited by counsel for defendants in error. As we have found, Miss Rossiter was not proposing to take any step respecting the will which would in the least prejudice the Asylum’s interests. It might have taken a little time to get the consulters together, but some delay would not have worked harm, while a consultation with his immediate associates in office, and with his legal counsel, so strongly recommended by Mr. Cosgrave, could have been had at the farthest in a few hours. Nor can we agree with the court’s conclusion that the archbishop acted in the greatest good faith and exercised a careful judgment. As already stated there is not shown bad faith from the moral standpoint; exactly the opposite appears. But from the legal standpoint how is it? While a trustee will be treated by a court of equity with indulgence and where he has acted in absolute good faith in all respects will be sustained if it can be done without violating equitable rules, yet he will not be upheld in a .course palpably arbitrary or unreasonable, for it is not enough that he be honest and from a moral standpoint act in good faith; he is bound in law to exercise diligence and to act reasonably. Discretionary powers should be exercised in the manner prescribed in the trust instrument, and, in this case, the trust instrument included as well the tenets of the church as the will of the testator. Those tenets (the decrees of the council) enjoined the duty of consultation. While the ultimate judgment, it appears, was to be exercised by the archbishop, yet the duty remained upon him to take reasonable means, and especially the means prescribed, for the enlightenment of that judgment-This duty confessedly the archbishop entirely neglected, and the rule seems to be uniform that where a duty is specifically enjoined, and the trustee absolutely neglects that duty, the mere presence of good intention and absence of bad motive will not be sufficient to prevent him from being held guilty of breach of trust. In the sense here indicated we think the archbishop did not act in the greatest good faith and that his judgment was a hasty rather than a careful judgment. Nor is there force in the suggestion that the contract was in some measure induced by a necessity for keeping the alleged incongruous and inconsistent character of the will from the public. The will had, some days before, been admitted to probate and thus constituted a part of the public records of the county and so open to the inspection of any interested person, and indeed to the whole world.

The case, as made by the pleadings, presents two phases which it is important to keep in mind. Whatever conceivable obligation rests upon the present archbishop because of the agreement is purely executory. Hence the suit is in effect an action to specifically enforce a contract. In another aspect it is a suit to validate an erroneous construction of a will. It is not at all analogous to a case where a trustee who has made investment of the trust fund in good faith and after taking all reasonable means, to ascertain the value of the securities, is sought to be held personally for an unanticipated loss. Hence authorities which apply to that kind of a case scarcely aid the disposition of the case at bar. And reference to those cases is not important here. Indeed we regard this case as resting so entirely upon elementary rules, recognized and enforced everywhere as controlling the conduct of trustees, that we do not regard it important to cite authorities. They have been cited by counsel and will be found collected by the reporter in his notes.

We are satisfied that a court of equity ought not to decree specific enforcement of a contract by a trustee bargaining away the property rights of his cestui que trust, by a ” contract executory in its character and without valuable consideration, and in behalf of a party who was fully aware of the character of the trust and who. in no way changed her position or conduct in consideration of the acts or promises of the trustee.

The judgment of the circuit court will be reversed and judgment entered for plaintiffs in error.

Reversed.

Crew, C. J., Summers, Davis, Shauck and Price, JJ., concur.  