I dissent from the decision of the majority that George A. Bryant, as a member of the voting committee appointed under the terms and by the authority of the *Page 152 provisions of the trust agreements of the Austin Trusts, is not entitled to expenses, including attorney fees, created and caused by the action of the trust beneficiaries, here designated as plaintiffs, in attempting to procure a court order to remove him as a member of the voting committee because of alleged conflicts of interests. In the principal case (Whiting v. Bryant, 102 Ohio App. 508) this court held that Mr. Bryant, having been appointed under the authority of the trust agreement and in the manner therein provided, his appointment being clearly within the purpose and spirit of the settlors' intention to see to it that the trust stock be voted by members of management, should not be removed as prayed for by plaintiffs. Mr. Bryant was clearly entitled, as designated in the trust agreement, to act as a member of the voting committee to vote the shares of stock of The Austin Company held in the trusts after his appointment to that committee.
It seems to be the claim of the plaintiff beneficiaries that:
1. Mr. Bryant's appointment was made in the interests of and as the representative of The Austin Company as a member of the voting committee of the trusts.
2. The best interests of the company can be separated from and are in some respects antagonistic to the best interests of the trusts.
Neither of these claims can be supported.
The claim that the services of Mr. Bryant, as a member of the voting committee, were not rendered for the trust but as a representative of The Austin Company, is without any basis of fact or law. Nor does the decision of this court, denying the prayer of plaintiffs' petition seeking Bryant's removal from the voting committee because of conflict of interests, support such claim. The claim that he could not vote the stock in the best interests of the trust because of his participation in management indicates clearly that when the petition was filed there was no claim, as here, that the income of the trust res was put in trust for the beneficiaries and the voting power of the stock in trust for the company. One who exercises the voting rights of a stock acts for the owner. Here the trust is the owner. Mr. Bryant's appointment was, by the instrument creating the trust and was intended by the settlors to be, a part and parcel of the management *Page 153 of the assets of the trust. Some of the beneficiaries, herein designated as plaintiffs, are here objecting to charging the trust with expenses created by them as a necessary result of their effort to remove one appointed to the voting committee under and by authority of the trust agreement, such expenses being created in preserving the integrity of the trust instrument against such action instituted by them. They should not now, under the circumstances of the case, succeed in such objection.
NICHOLS, J., of the Seventh Appellate District, sitting by designation in the Eighth Appellate District.