Reed

This is an appeal from a decree of the probate court disallowing a portion of a current account and report of a testamentary trustee.

Walter S. Keet died August 13, 1926, leaving respondent, his widow, surviving. His will, admitted to probate September 13, 1926, created trusts in a part of the estate, which trusts were embodied in the decree of distribution made November 14, 1927.

The relevant trust provisions of the will as contained in the decree of distribution were as follows: (1) A general trust was created, to collect and accumulate the income of most of the property until a future date. The trustee was given broad powers of management, with right to sell and reinvest. (2) Next, the trustee was directed to pay to a Mrs. Emma Hubbard the net income from certain specified property. (3) The provision involved herein then follows: “Said trustee shall set apart as a separate and special fund all common stock belonging to decedent in the United Steel and Wire Company of Battle Creek, Michigan, and shall pay to said Georgia S. Keet, widow, the net income derived therefrom during her natural lifetime—and shall pay to said widow all dividends accruing upon said stock from the date…

With some mental reservation I concur in the conclusion reached in the opinion of Mr. Justice Gibson, which, as I understand said opinion, is predicated upon the proposition that the order of the trial court authorizing the trustee to sell the United Steel and Wire Company stock had become final and that it was not subject to collateral attack in the manner in which respondent sought to attack said order in this proceeding. Prom a strictly legal standpoint, this conclusion is inescapable.

However, the trial court found that the trust officers of appellant represented to respondent that they had made a full and fair investigation of United Steel and Wire Company and that there was something wrong with it, whereas, in truth and in fact, said trustee had not made a full and fair investigation, and that such investigation if actually made would have revealed that said company was in a sound financial condition; that at the time the trust officers represented to respondent that the sale would be to her best interest, the trustee well knew that the sale of said stock would result in a loss of income and injury to respondent rather than benefit; that respondent relied upon the…