Willis v. Holcomb

Citations

• 83 Ohio St. (N.S.) 254

Syllabus

<p>Testamentary trust fund invested in mortgage — Foreclosure—Purchase of property ' by trustee — Amount of sale exceeds original trust fund — Incumbent upon trustee to sequester amount of original fund — Any surplus then remaining adheres to original trust fund — Not credited as proceeds to cestui que trust— Rights of latter — Duties of trustee.</p> <p>1. If a trustee of a testamentary trust invests the trust fund according to the direction of the will of the testator, and without his fault the trust fund is imperiled by reason of want of bidders at a foreclosure sale of the property mortgaged to secure the fund, and for the purpose of protecting the fund, he purchases the property at sheriff’s sale, taking the title to the same in his own name as trustee, and the cestui que trust then being under no legal disability to act for himself, without protest on his part, enters into the possession of the land and uses and occupies it, or accepts from the trustee the rents or revenues thereof in lieu of the interest earnings on the trust fund had the same been continued at interest, such cestui que trust is estopped by his conduct from questioning the right or the authority of the trustee to make such purchase, and from demanding from him an accounting of an amount equal to the interest such fund would have earned during the time he so occupies the land or accepts the rents and revenues therefrom.</p> <p>2. Where such purchase has been made and it afterward appears that the trust fund is not in peril of diminution by reason of the land selling for a lesser sum than the amount thereof, it is the right of the cestui que trust to require the trustee to sell the land and reinvest the proceeds thereof according to the terms and provisions of the will creating' such trust, and upon failure of the 'trustee to do this after demand made therefor a court of competent jurisdiction may compel him to do so.</p> <p>3. Out of the proceeds of the sale of such land the original trust fund