dissenting in part and concurring in part.
Our standard of review for summary judgments is well settled. Suffice it to say that any doubts as to the existence of an issue of fact are to be resolved in favor of the non-moving party.
In the case before us we are concerned not only with the alleged monetary loss sustained by the beneficiaries as a result of the diversification decision by the Bank, but also the aspect of the summary judgment which denied the request that the Bank be removed as trustee. The latter question is not necessarily answered by holding that as to the statute of limitations question, there was no genuine issue of fact as to a breach of fiduciary duty in selling Lilly stock. A trier of fact may have been permitted to determine from the evidence that in making misrepresentations to the beneficiaries as to federal examiners’ orders to diversify, the Bank had so jeopardized its trust relationship as to require removal. With or without regard to the misrepresentation, the diversification decision was either an appropriate investment decision or it was not. The arguable fraud, however, may or may not impact upon whether the Bank should remain in the position of trust.
I agree that the two year statute of limitations bars the claim of the beneficiaries with regard to sales of Lilly stock. It would appear that the last sale of Lilly stock occurred in December 1985. The complaint was not filed until February 22, 1988, more than two years later. I do not, however, agree that the alleged fraud or the failure of the beneficiaries to discover it is particularly meaningful. As earlier stated, the diversification was either a sound investment decision or it was not. That is the question, the answer to which determines whether there was a viable cause of action or not. The misrepresentation as to a federal impetus for diversification relates to the Bank’s possible desire to disguise the true motivation for the diversification but it does not change what might have been a valid investment decision into an invalid one.
The beneficiaries’ claim of estoppel so as to toll running of the statute of limitations, is misplaced. The alleged concealment concerned the reason for the Bank’s decision to sell Lilly stock. There was no concealment as to the various sales themselves; and it is these transactions which triggered the running of the statute. The fact of the sales was not concealed. The statute of limitations was not tolled by the “concealment” as alleged.
Nevertheless, I disagree with the majority in its conclusion that the beneficiaries were under some duty to use diligence and to earlier discover that there was no federal mandate to sell. This view would seem to undercut the very essence of a trust relationship. It would appear to say that persons are not entitled to rely upon the *70good faith of a fiduciary but are required to be suspicious of every act or statement made.
I fully agree with the majority in its conclusion that the protracted discussions between the Bank and beneficiaries about an indemnification agreement were wholly meaningless. The Bank clearly took the position that even had all adult beneficiaries signed such an agreement, it would have created any contractual obligation on the Bank to retain the stock if the Bank determined that all or any part of it should be sold. The hold harmless provision would have been of import only if the Bank had not diversified and, as a result, the trust sustained loss. The indemnity matter was clearly not critical or even a meaningful factor with regard to the diversification.
For the reasons set forth, I concur in the affirmance of the summary judgment as to the claim for monetary loss by the beneficiaries but dissent and would remand to the trial court for reconsideration of the continued or continuing status of the Bank as trustee.