CONCURRING OPINION.
WOODSON, J.I concur in the opinion of our learned Commissioner, Brown, not only for reasons so ably stated by him, but also for the following reasons :
*704 Trust9Fund.:
If the English language has any meaning and if the law of Missouri has any application to wills and trusts created thereby, then the will of John Berry, deceased, created a trust in the lands described in the pleading in this case, in favor of his wife and children, to the effect that they should be supported, and the children educated out of the rents and profits thereof. This has not and cannot be seriously questioned.
Unfortunately, the testator died leaving an incumbrance upon the land and failed to appoint a trustee to administer the trust.
Under those conditions Thomas Berry, one of the plaintiffs, undertook to administer upon the estate of his father, and having no means with which to discharge the mortgage mentioned in the evidence, renewed the same for five years, and before it matured, made final settlement of his • father’s estate, leaving the mortgage unsatisfied.
Presently the mortgage became due, and payment was demanded, and there being no funds on hand with which to pay it, and the property being subject to sale in satisfaction thereof, and the trust thereby being placed in extreme jeopardy, the circuit court of the county in which the land was situated and the parties interested resided, under its ancient chancery powers, appointed the defendant Stigall, trustee, to administer the trust created under and by virtue of the will.
Among other things it became his duty to preserve the trust fund, the land in question, in the same manner as if it was his own, in order to carry into effect the trust created by the will; and the only possible way that could be done was to satisfy the mortgage, and prevent the threatened sale; and there being no money on hand with which he could pay off and satisfy the mortgage, it clearly became his duty to borrow money for that purpose, which he did, and satisfied the same therewith.
*705However, lie should first have applied to the circuit court for an order authorizing him to borrow the money, pay off the old mortgage and execute a new one to secure the new loan.
Had he done neither, he would not have exercised ordinary care, which the law required of him, in the preservation of the trust fund placed in his hands; in which event the land would have been sold and the trust fund would thereby have been sacrificed to all, including plaintiff, which of course, would have rendered the trustee personally liable for a breach of. trust.
The only complaint, in effect, counsel for plaintiffs makes, is, that the trustee, Stigall, did not procure an order of the court which had ample power to make it, authorizing him to borrow the money with which to lift the mortgage, and to execute another to secure the money so borrowed for that purpose.
Strictly speaking, that may have been true (but I am not here prepared to so state, for I have not investigated that question in regard to this class of instruments). Since, however, there is no claim made but what the trustee acted in the best of good faith, and that the money borrowed by him and secured by his deed of trust on the land went in payment of the original mortgage placed upon the land by the testator, no possible damage or harm was done to the plaintiffs; but upon the contrary, they were greatly benefited thereby, in that the trust fund was saved from destruction, worth about $6000, by the discharge of the mortgage which was for a sum about one-fifth the real value of the land.
For the reason stated, if there ever was a cause where the law of subrogation should apply, with all of its vigor, force and natural justice, this is that case, and a court of chancery and good conscience should, *706without hesitation, lay her gentle hand of equity upon the situation and mete out natural justice to all.
Entertaining these views of the case, I am clearly of the opinion that the judgment is erroneous; and that the appellants, as representatives of the King estate, . are entitled to be subrogated to all the rights and equities in and .to the land in question, that the former mortgagees had therein, prior to the payment of their mortgage by Stigall, trustee.
The judgment should therefore be reversed and cause remanded with directions to the circuit court to enter judgment for appellants according to the views herein expressed, and that the court foreclose the King mortgage in the manner provided for by law in such cases.
Lamm, G. J., Brown and Walicer, JJ., concur; Graves, Bond and Faris, JJ., dissent.