The opinion
HUXMAN, Circuit Judge
(dissenting).
I fully concur in the findings of fact and conclusions of law of the learned trial court, and therefore am unable to concur in the majority opinion. No useful purpose would be served in setting out in detail the analysis of the evidence which, in my view, justifies the conclusions of the trial court. The majority opinion seeks to make the trustee the prime mover in the incorporation of the partnership. The reoerd reveals that the interested parties, including Ferguson, sought the advice of a competent attorney, and that it was his advice that they form a corporation, and that they all acted thereon. The attorney represented all the parties and not the trustee. Not only that, but he gave them sound advice. He advised the formation of the only kind of an organization through which the ranch could be continued. The mere fact that the trustee chose to leave trust funds which he found in the ranch in the corporation and thus continue the existing interest in the ranch does not convict him of either bad faith or bad judgment in refusing to invest free trust funds in the venture. And that is so even though it be conceded that the venture might continue to be profitable.
There is no claim here that the trustee mismanaged the trust funds or that his lack of integrity as a trustee resulted in a loss to the estate. It is admitted that the management of the trust funds resulted in a very substantial profit. The only complaint is that he refused to make a particular investment. The reasons why he thought further investment of trust funds in this closed corporation were not advisable are not only adequate, but to me are compelling. Only one need be noted. The trustee stated that it was his policy to keep the trust *576 funds liquid so that they would be available to the beneficiaries when they reached the period when it was his duty to distribute them. If he was able to do this and yet make them earn an adequate return, it was of great advantage to these young people when they became of such maturity that they could manage their own affairs to have their property separate and distinct so that they might take possession thereof.
Neither do I agree that at the time this stock was for sale, the trustee as executor under the will had power to invest estate funds in this stock'. The ordinary duties of an executor or administrator are to marshal the assets and distribute them under the terms of the will. This will give the executor discretionary power to invest the cash funds of the estate during the period of administration. The period of administration fixed in the will had, however, expired, and any beneficiaries had a legal right to demand a distribution of the cash assets. It follows that the executor therefore had no further right to make investments of the cash in his possession. His remaining duty was to distribute the cash on hand, and had a loss resulted, he would have been liable to those entitled thereto.
There is implied in the narration of facts of the majority opinion a charge of bad faith, or, stated otherwise, a failure to discharge that high degree of responsibility due from a trustee by concealing from Vendla E. Wootten information concerning the affairs of the corporation. She was a member of the Board of Directors. It is without dispute that she attended some of the Directors’ meetings and participated therein. Furthermore, she not only told John Wootten that she did not want any more stock in this corporation, but she also told others, including her banker, that she did not want any more of her money invested in ranch enterprises. Later, when she asked for some of this stock, the trustee offered -to transfer it to her. tie did the same with Richard K. Wootten when he became of age. But they were not satisfied with this. They demanded that he also transfer to the remaining trusts a ratable portion of this stock. Unfortunately they did not possess the power of making these investments or these decisions. No doubt had the deceased trustor intended to invest them with such authority, he would have made them trustees. But not only do we by our decision give them this power, but we join them in directing the trustee to make a particular investment. We do this not because we think he has handled these trust funds improvidently, but because we believe it is for the best interests of the beneficiaries that the stock ownership in the corporation be kept on a parity basis, and that his failure to do this constitutes legal faithlessness on his part. This is purely a matter of discretion which was vested in the trustee by the trustor, and we should not substitute our judgment for his.
For these reasons I am forced to dissent.