concurring:
I concur in the conclusion reached by my associate, Judge Ross.
Equity looks to substance and not to form. It is conceded that self-dealing by a trustee with his trust invalidates the trust investment, at the option of the trustor or his beneficiaries. Confusion -is created by the many departments of the bank involved in its trust transactions. The fact remains that some of the certificates involved were purchased by the trustee from pools which it owned entirely, or of which it was the partial owner. Some were created ab initio by the purchase of the land and the issuance of land trust certificates, which were then sold by the bank to itself as trustee of the estate involved, and a commission • was charged by the bank for its services.
I am of the opinion that the rules of equity will not look upon such transactions as measuring up to the requirements of utmost good faith on the part of a trustee in handling the trust estate. To stamp the court’s approval on the conduct of the trustee in the transactions involved would open the door to the point of jeopardizing trust investments generally and may not always be free from bad faith as in the case here.
The questions in the instant case have been discussed at length in the opinion of Judge Ross and in the dissenting opinion of Judge Matthews, and since the case is to be certified to the Supreme Court for final decision, I will not discuss the questions involved further.