I concur in the findings of error in the judgment of the trial court and the reversal and the remanding of this cause to the Court of Common Pleas for such further proceedings in accordance with rules of law and the settled principles of equity applicable to the continuing trust relationship as shown to exist in the case before us. *Page 218
I do not concur in the finding that the trial court could not dismiss the third amended petition, as amended, of the plaintiffs at the conclusion of plaintiffs' case if the evidence was found to be sufficient to show only a prima facie case for the granting of any kind of immediate relief.
The difference of opinion on the question of procedure, however, does not affect the result reached by a majority of the court.
Although not necessary to be decided, it is my view that the third amended petition, as amended, should have been dismissed without prejudice.
The principal error in the judgment of the trial court, as this member of the court views the situation presented by the evidence, was the finding by that court that all of the issues of ultimate fact presented should be determined in favor of the defendant, which in my view amounted to a determination as a matter of law and for all practical purposes closed the door against the plaintiffs for the securing of any kind of relief during the continuance of the trust relationship, so long as the relation or status of the parties remain similar or substantially the same as is shown to exist by the evidence in the record before the court.
The suggestion is made by the trial court that the plaintiffs might secure an injunction in the event the Austin shares were being sold at an unfair price, but according to my view the securing of that relief would be problematical when the ultimate issues of fact which were determined in favor of the trustee are considered, including the court's interpretation of the extent of the authority granted the trustee under the trust agreements. Also, the condition should not be overlooked that in addition to Mr. Bryant's dominating position in The Austin Company and his influential position as a member of the board of directors of the trustee bank, he is also in the position of a fiduciary, with *Page 219 joint authority to vote the trust-held shares of the beneficiaries in The Austin Company.
It might be said with some feeling of safety that with the present personnel of the trustee in control, the interests of the beneficiaries would be properly safeguarded, but unfortunately, as was stated by the trial court in another connection, time marches on and changes in personnel do inevitably occur, which is a main reason for the adoption by the courts of the acknowledged rule of law governing the trust relation that a condition of divided loyalty and a conflict of duties should not be allowed to endanger the trust estate.
The dilution and depreciation of the trust-held shares is evidence of what can take place under conditions where human ambition for great material gain is coupled with an advantageous position of trust and influence.
Much might be said concerning the manner in which a dilution of the trust-held shares was accomplished, although the responsibility for such depreciation is not for definite determination here.
In my view, it is brought about by a pernicious practice in corporate enterprises which endangers the otherwise great system of American free enterprise, due to the inequities and disparities which are the inevitable result of the use of those methods in corporate management. The possible relief afforded the beneficiaries of the trusts in equity can not be allowed to be stifled or curtailed in the future in a continuing trust relation.
As an example, since the trustee has exercised its authority in voting the trust shares in a change in the capital structure of the corporation and possesses that continuing authority, it could only be compatible with the exercise of that authority that the trustee should understand and be responsible to the extent of its authority *Page 220 respecting changes and actions by the corporate managers which affect the proportionate value and status of the trust-held shares. Certainly, the settlors intended and the law requires that the trust estate be safeguarded and preserved under any and all circumstances within the reasonable powers of the trustee to do so.
The trust estate is of paramount concern in all situations, and the duty of the trustee is at least equal to the considered obligation of a substantial voting stockholder in a corporation and beyond in the case before us, for the reason that the trustee was selected as a specialist, equipped with knowledge, experience and facilities far greater than is possessed by the average stockholder in a corporation.
Equity, therefore, will not countenance any relaxation or evasion in the trustee's duty to exercise constant vigilance and the strictest loyalty in the protection and enhancement of the trust estate.
The Supreme Court of the state has made clear and unequivocal announcements embodying the principles applicable to and controlling trust relations in a number of decisions which have been cited and are so well known as to require no further emphasis here.