(dissenting): — I respectfully dissent from the opinion of my learned brother. “Item 8,” of the will of Anthony W. Rollins, is in these words: “When my executors shall have raised the said sum of ten thousand dollars in the manner above specified, it is my will that they pay over the same to Alexander Persinger, Gilpin A. Tuttle and James C. Daley, justices of the county court of Boone county, or their successors in office, who may compose the county court of Boone county at the time, and that said fund shall remain with and be vested in said court as a permanent fund for the promotion of the object specified in the seventh item of the will above.” He named the three gentlemen who were to constitute the first trustees and provided that, in case the fund was not raised during their incumbency, their successors in office who should compose the county court at the time the fund was raised, and their successors, should be his trustees to invest and distribute this charity. As I read it his purpose was, in this way, to secure a permanent set of trustees. The words “justices of the county court of Boone county” was a designation of their successors, equivalent to naming them by their proper names, a mere designatio personae, and the trust was not to be executed by them in their official characters but in their private and individual characters.
' The county court as such was not invested with jurisdiction to receive and manage a private charity of this character, and it was no part of their public functions. The powers conferred upon the members of the court as indi*501viduals were derived from the will and not from the Constitution and laws of the State creating that court and defining their powers as such.
While it was entirely competent for Anthony Rollins to delegate to the persons named and their successors complete authority to regulate, control and dispose of his charity, I respectfully submit he could not confer upon the county court as a court a jurisdiction not conferred upon it by law. By his will he had created a trust and the county court had no equitable jurisdiction over said trust.
It seems to me that this conclusion necessarily results from the nature of these courts and well settled legal principles.
The decision of this court in Chambers v. St. Louis, 29 Mo. 543, in which Judge Scott with such signal ability maintained the power of the city of St. Louis as a municipal corporation to take property in trust for a charitable use does not in my opinion sustain the argument that like authority could be conferred upon the county court which is not given the powers from which Judge Scott evoked that right for the city.
In order to give effect to the intention of the testator, I think it should be held that the trust was confided to individuals and not a court incapable of accepting and executing the trust, and that their successors are provided for from time to time. Such is the theory of this action. and such I think is also the view of the defendants themselves. The bill charged that the defendants became the trustees of this fund on January 1, 1887, and the circuit court found that they accepted the trust at that time. As I read the-record no exception was saved to that finding and no complaint is made by appellants on that score. They admit that they held $40,339.89, which they offered to turn over to plaintiffs, their successors in said trust. The real issue *502tendered was what was the true sum for which they were required' to account.
This brings us to the real contention in the case that of the measure of care which the law exacts of defendants in the administration of this trust fund so confided to them.
The defendants were elected judges of the county court in 1886, and entered upon their duties in the administration of this trust in January, 1887. It amounted at that time to $37,844.77. Prior to this time it is true the different county judges had constituted the county treasurer their financial agent and confided to his keeping the money and securities belonging to this trust.
On the first of January, 1887, Trimble, the outgoing treasurer turned over the above sum to Gillespy, the incoming treasurer.
That these defendants made no formal appointment of Gillespy as their agent is true but that they fully recognized him as their agent and answerable to them is certainly established by the testimony of defendant Roberts.
Their acquiescence in his action in that capacity must, under the circumstances, be held as effective as if they had made a formal appointment.
Their duty was plain, either to refuse to accept this trust, and ask a court of equity to appoint a trustee for this fund, or accept it and administer it with that degree of care that ordinarily prudent men would use in the conduct of their own business in a matter of this importance. Did they do this ? The facts show that at the time Gillespy first received this fund he had good reputation for honesty and integrity. Pie was largely indebted and his property was encumbered by recorded deeds of trust nearly, if not quite, to the amdunt of their value.
But whatever this condition, defendants made no inquiry or examination into his financial condition.
It seems undeniable that Gillespy, while in charge of *503these funds, kept them mingled with the county money in his hands, and deposited to his individual credit in bank and indiscriminately checked on the same for his private use, as well as in payment of public warrants.
No doubt can exist as to the measure of care exercised by defendants. It is shown by the testimony of defendant Roberts. He stated that the defendants never required a detailed statement of the condition of this fund during Gillespy’s incumbency. They did not know and did not even inquire where he was keeping this fund.
Judge Angell’s evidence was to the same effect.
About the close of Gillespy’s first term he began selling off his land and at the close of his second term he was found to be wholly insolvent. Defendants then undertook to settle with Gillespy and took his note for $2,500 as a compromise. Granting that a trustee may employ an agent for some purposes, I can not agree that there was the slightest necessity for these trustees to delegate to Gillespy the keeping of this important fund. If it was necessary to keep it in bank for want of borrowers, it was their obvious duty to use their own discretion in selecting the bank or other depositary, using due diligence to see that it was deposited in an institution recognized as a solvent and safe bank.
Even if they found it convenient to have applications for this fund made to the treasurer there was no necessity for depositing the money with him. After the preliminaries of the loan had been arranged they could have given their check for the money.
Such is the general course of business. Ordinarily prudent men with money to loan do not turn over their money to their loan agents.
I can not escape the conclusion that these defendants regarded their duties as entirely formal. Surely such a view of their liability can not be sanctioned by the courts. *504That their predecessors may have been equally loose in their management of this fund, does not excuse them.
It can not be maintained that a negligent course of management by one set of trustees shall establish a rule of conduct.
Without going into detail, I hold that the evidence discloses inexcusable negligence in committing this fund to Gillespy, because there was no necessity for so doing; that the trustees were negligent in not ascertaining his solvency before turning over to him this large sum of money; that their failure to require regular and frequent detailed reports of how the money was kept and where and the character of the depositaries was inexcusable. I can not agree that as county treasurer Gillespy had any right to this fund, nor that his sureties are liable for his default. His sole and only claim to handle it originated in the permission accorded by defendants and their acquiescence in his acting as the custodian thereof.
He was their agent, and for his default they should be held liable.
I think the judgment should be affirmed.
Robinson, J., agrees in my views.