
    In re Trusteeship of Tischer.
    (Decided May 29, 1933.)
    
      Mr. John W. Bricker, attorney general, Mr. Hubert Estabrook, Mr. Daniel W. Iddings, Mr. Sidney G. Kusworm, and Mr. Roland McKee, for the Union Trust Company of Dayton.
    
      Messrs. Legler & Murray, for Hazel Tischer.
   Ktjnkle, J.

This case comes into this court both upon appeal and upon proceedings in error. "We will consider the case on error. The appeal may be dismissed.

The case was originally brought in the probate court of Montgomery county upon exceptions filed by Hazel Tiseher to the final account of the Union Trust Company of Dayton, as trustee under the last will and testament of her father, G-eorge W. Tiseher, deceased.

■The probate court, as appears from the record, sustained the exceptions as to branches Nos. 1, 2, 3 and 4 thereof, and overruled the same as to branch No. 5.

The Union Trust Company of Dayton, as such trustee, thereupon perfected an appeal from the judgment of the probate court to the court of common pleas of Montgomery county. The court of common pleas of Montgomery county overruled.all of the exceptions, whereupon the case is brought to this court for determination.

The Union Trust Company of Dayton, the present trustee, succeeded the Dayton Savings & Trust Company of Dayton as trustee of the fund in question. The Dayton Savings & Trust Company was originally named as the trustee of said fund, and in June, 1925, qualified as such trustee in the probate court of Montgomery county, and assumed to perform the duties of such trustee. In June, 1926, the Dayton Savings & Trust Company filed its first account as such trustee, and charged itself with the principal amount of $6,000, together with income by way of interest received on $5,000 of First Texas Joint-Stock Land Bank of Houston 5 per cent, bonds at $102.50, also the interest on certain second 4% per cent. Liberty Loan bonds. The record shows that the executors, Charles E. Tiseher, Raymond L. Tiseher and Estella Hoerner, approved, in writing, these investments.

The approval of the probate court was not obtained before tbe investments were made, but the account was duly approved by tbe probate court in August, 1926.

In August, 1928, tbe trustee, tbe Dayton Savings & Trust Company, filed its second report in which it charged itself with the sale of $850 of second 4% per cent. Liberty Loan bonds at $100.80, and also charged itself with interest on the First Texas Joint-Stock Land Bank of Houston 5 per cent, bonds, together with the Federal Land Bank bonds, and among the expenditures showed the purchase of Federal Land Bank 4% per cent, bonds at $100.75. It appears that prior to the filing of this second account the officer in charge of the trust funds of the Dayton Savings & Trust Company wrote the guardian of Hazel Tischer and explained the nature of the investments which had been made.

This second report was approved by the probate court in October, 1928.

The record also discloses that in April, 1930, the Dayton Savings & Trust Company resigned as trustee, and on the same day the Union Trust Company applied for appointment, and was appointed as such trustee in place of the Dayton Savings & Trust Company. The Dayton Savings & Trust Company resigned because its affairs, in effect, had been turned over to the Union Trust Company.

In June, 1930, the Dayton Savings & Trust Company filed its third and final account showing some $89 in cash, $5,125 in First Texas Joint-Stock Land Bank of Houston 5 per cent, bonds, and $846 in Federal Land Bank of Louisville 4% per cent, bonds; above cash and bonds being of the face value of $6,060.80. This third and final account was approved by the probate court in August, 1930.

The first and final account of the Union Trust Company was filed September 1,1931, and shows that upon its appointment it received from the Dayton Savings & Trust Company the above-mentioned First Texas Joint-Stock Land Bank of Houston 5 per cent, bonds, and the Federal Land Bank of Louisville 4% per cent, bonds, and that the same were retained by it as such trustee without change. The trustee also stated in said first and final account that the trust fund should be distributed, as the beneficiary had arrived at the age of majority, that being the time fixed for the termination of the trust.

To this first and final account of the said trustee, the Union Trust Company, Hazel Tischer, the beneficiary under said trust, filed exceptions on September 3, 1931. Said exceptions are as follows:

1. To the item in the first account dated June 27, 1925, showing a disbursement to the Dayton Savings & Trust Company of $5,205.55 for the purchase of $5,000 First Texas Joint-Stock Land Bank of Houston, Texas, 5 per cent, bonds, in that said purchase was not authorized by the probate court as required by the will and because said trustee bought said bonds through its own bond department presumedly at a profit.

2. To the item in the first account dated July 1, 1925, showing a disbursement to the Dayton Savings & Trust Company of $867.16 for the purchase by it of $850 Second 4% Liberty Loan bonds, said purchase being made by the trustee from its own bond department presumedly at a profit.

3. To the item in the second account dated July 1, 1926, showing a receipt of $861.41 from C. F. Childs & Company for the sale of $850 Second 4% Liberty Loan bonds, for the reason that said sale was not authorized by the probate court.

4. To the disbursement in the second account dated July 1, 1926, to the N. S. Talbott Company for the purchase of $840 Federal Land Bank 4% bonds totaling $846.30, for the reason that said purchase was made without the consent of the probate court, as required by the will.

5. To the item in the fourth account showing a disbursement of $95.04 to the Union Trust Company for trustee’s fees for the reason that said trustee is not entitled to compensation on account of misfeasance in the handling of the trust fund.

In brief, it appears from the record that George W. Tischer, a resident of Montgomery county, died testate in December, 1924; that his last will and testament was probated in the probate court of Montgomery county, Ohio; that his two sons, Charles E. and Raymond L. Tischer, and his daughter, Estella M. Hoerner, were appointed and qualified as executors, and that said executors filed their first and final account in April, 1930; that the account was approved and the executors were discharged.

It also appears from the record that upon the day Hazel Tischer became of age the market value of the bonds in which the funds of the ward were invested had depreciated to such an extent that there was a shrinkage or loss in the then market value of the bonds over the amount that had been paid by the trustee for said bonds in a sum between $2,600 and $2,700.

Item 2 of the will of George W. Tischer, which relates to the creation and management of the fund in question, is as follows:

“Item II: I give, devise and bequeath to The Dayton Savings and Trust Company, of Dayton, Ohio, as trustee, the sum of Six Thousand ($6,000.00) Dollars, the s'ame to be held in trust for the benefit of my granddaughter, Hazel Tischer, the daughter of my son, Harry A. Tischer, upon the following conditions, to-wit:
“(a) I appoint The Dayton Savings and Trust Company of Dayton, Ohio, as trustee of said Six Thousand ($6,000.00) Dollar fund, and direct that it shall make all reports to, and conduct the trust herein created, under the instructions and authority of the Probate Court of Montgomery County, Ohio.
“(b) I direct that said Six Thousand ($6,000.00) Dollar fund shall be invested by the trustee herein in safe securities, of its own choosing, by and with the approval of the Probate Court of Montgomery County, Ohio, and the executors and trustees of my estate hereinafter named. Said trustee shall make said investment so that the same shall be as safe as possible, and yield as great an income as possible. * * *
“(d) This trust shall continue until my granddaughter Hazel Tischer becomes twenty-one years of age, at which time said trust shall terminate completely, and the-trustee herein is hereby directed at that time, to pay said fund over to my granddaughter, Hazel Tischer, the same to become hers, her heirs and assigns, absolutely and forever.”

Under the circumstances disclosed by the record, should the depreciation in the value of the securities so purchased by the trustee fall upon the beneficiary, or should the trustee bear such loss?

It will be observed that the exceptions are directed -to the first and second accounts of the Dayton Savings & Trust Company, and also to the account of the Union Trust Company in so far as compensation to said trustee is concerned.

The exceptions do not relate to the third and final account of the Dayton Savings & Trust Company, and upon the approval of such account the Dayton Savings & Trust Company was released from the trust and its • successor was appointed.

Counsel for the trustee insist that the exceptions to the final account of the present trustee, viz., the Union Trust Company, cannot be sustained for various reasons, among which are:

(1) That the beneficiary is barred from opening up the accounts of the Dayton Savings & Trust Company.

(2) Both the Dayton Savings & Trust Company and the Union Trust Company have faithfully performed their duties as trustee.

Counsel for exceptor, and also for the trustee, have favored the court with unusually exhaustive briefs in which the legal questions involved are discussed and the pertinent authorities supporting the respective contentions of counsel are cited and reviewed in considerable detail.

We have considered these briefs of counsel with care, but it would be impractical in this decision to attempt to review the many authorities so cited.

- The duty of a trustee is dwelt upon at length in such briefs, and the circumstances under which a previous accounting may be opened up are set forth in detail. A. very interesting review is also contained in the briefs of the controlling authorities in cases where investments are made without the express approval of the probate court prior to the making of the investment, but where a report of the trustee is filed showing the nature of the investment of the trust funds and such report is approved by the court.

■ We will assume, for the purposes of this case, that a review of the conduct of the former trustee, under the circumstances disclosed by the record, is permissible. Such review under the state of the record here presented is questionable, but without finally determining that question we shall proceed to a brief discussion of the proposition urged by the trustee, viz., that both the Dayton Savings &' Trust Company and the present trustee have faithfully performed their duties as trustee.

As above recited, the trust instrument in question is as follows: “I direct that said Six Thousand ($6,000.00) Dollar fund shall be invested by the trustee herein in safe securities, of its own choosing, by and with the approval of the Probate Court of Montgomery County, Ohio, and the executors and trustees of my estate hereinafter named. Said trustee shall make said investment so that the same shall be as safe as possible, and yield as great an income as possible.”

Section 11214, General Code, provides for the investment of trust funds as follows: “When they have funds belonging to the trust which are to be invested, executors, administrators, guardians, including guardians of the estate of minors, and trustees, may invest them in bonds or certificates of indebtedness of this state, of the United States, or in the bonds or certificates of indebtedness of any county, city, village or school district in this state, on which default has never been made in the payment of interest, or in bonds issued by any bank organized under the provisions of the Act of Congress known as the Federal Farm Loan Act, approved July 17, 1916, and amendments thereto, or in such other securities as the court having control of the administration of the trust approves.”

It will be observed that the investments in question were made in compliance with the provisions of the Code of Ohio. The investments as made were in effect approved by the probate court by approving the various reports filed by the trustee.

The investments under the provisions of the trust were to be of the choosing of the trustee. Such choosing was confined to the selection of securities which clearly came within the provisions of Section 11214, General Code.

The record does not disclose any willful misconduct upon the part of either of the trustees. From an examination of the various authorities cited by counsel, we are inclined to the opinion that the failure to secure the express approval of the probate court prior to making the investments merely resulted in placing upon the trustee the burden of showing that the investments were made in pursuance with the provisions of law, and that it was guilty of no injudicious conduct in making such investments.

We cannot escape the conclusion that the record supports the trustee in these respects.

Many authorities are cited at length in the briefs of counsel upon this subject. Among them are a few pertinent cases, such as the decision of the Court of Appeals of Hamilton County, in the case of American Bonding Co. of Baltimore v. Second National Bank of Cincinnati, 33 C. D., 502, 22 C. C. (N. S.), 177. The second paragraph of the syllabus reads as follows: “When a trustee purchases with funds in his hands bonds constituting the highest form of investment known to the law, and the investment is reported to the court in his account which is confirmed in due course, such confirmation operates as an approval of the investment as fully as though a prior formal order had been made.”

In the case of Estate of Cridland, Deceased, 132 Pa., 479, 19 A., 362, the syllabus is as follows:

“ (a) By a will, directing the conversion of a residuary estate, it was provided that it should be invested in trust in productive real estate, well secured ground-rents, mortgages, etc., after approval thereof on prior application to the Orphans’ Court having’ jurisdiction of the accounts.
“(b) Under the advice of counsel, the trust estate was invested in United States bonds, payable at the option of the government at the end of five years, but not at the pleasure of the holder until the end of twenty years. For these bonds a premium was paid.
“(c) At the time the purchase was made, it was believed by capitalists that the option of the government would not be exercised;- but at the end of five years the bonds were called in and paid off by the government at their par value:
“1. In such case, it was not error, on the adjudication of the trustee’s accounts, to refuse to surcharge with the amount of the principal alleged to have been lost by the investment in the bonds at a premium, although the investment had been made without previous application to the Orphans’ Court.
“2. The only effect of the failure to first obtain the approval of the Orphans ’ Court, was to throw upon the trustee the burden of showing that the investment was such as the law permitted, and that in the light of existing circumstances there was no imprudence in making it; this had been shown beyond question: Per Penrose, J.”

Without further citing authorities, we are of opinion that, under the circumstances disclosed by the record, the investment by the trustee of the funds in securities authorized by Section 11214, General Code, relieves such trustee from liability for the depreciation, under the existing unusual circumstances, in the securities in which such funds were so invested.

The judgment of the lower court will therefore be affirmed.

Judgment affirmed.

Hornbeck, P. J., and Barnes, J., concur.  