The opinion
KRUPANSKY, Circuit Judge,
dissenting.
Because the majority and the district court have fundamentally erred in identifying the fact at issue herein, I must respectfully dissent. Contrary to the majority opinion that “the issue of fact in this inter-pleader action is who are the present trustees of the Shelden trust,” supra at 433, the actual dispute in this case concerns the identity of the corporate officers of FDS Land Co. and Windigo Ranch Inc. who may properly withdraw the funds held in the corporate accounts of these organizations maintained at the National Bank of Detroit (NBD). Simply put, a determination of the individual or individuals authorized to act as the personal representative of a corporate shareholder does not resolve the issue of the identity of the duly designated corporate officer or agent authorized to control corporate assets.
Viewed properly, only the following facts are relevant. Young and Alger Shelden, Jr. were indisputably the corporate officers of FDS Land Co. and Windigo Ranch Inc. listed on the signature cards (withdrawal authorization) at NBD at the time the Trust was formed. Presumably, those corporate officers could have been removed, or additional officers with authority over corporate accounts could have been designated only by fulfilling both of two conditions: (a) possessing the authority to vote the corporate shares, and (b) actually taking formal corporate action in conformity with the laws of the incorporating state and the corporate by-laws. The Trust created by Shelden empowered the Trustee to “vote stocks held in trust.” Sec. 3.2.
Accordingly, the first relevant inquiry is the validity of the Trust, which, incidently, has not been addressed. If a valid Trust existed at the time here in issue, then any lawful Trustee would have the authority to elect corporate officers of FDS Land and Windigo Ranch, although two separate factual inquiries would still remain, namely (a) was the authority ever exercised, and (b) was the exercise of the authority in conformity with the law and corporate bylaws governing the operation of the two companies. If the Trust is not valid, perhaps because it was created for the improper purpose of underwriting a flight from prosecution, then the party in direct control of the stock was and is Shelden himself, and the secondary inquiries must resolve the presence of any evidence that he properly exercised the authority to elect the corporate officers of FDS Land or Windigo Ranch and if that exercise of authority was lawful.
The district court merely determined the identity of the proper Trustee under the Trust. Even if Shelden’s de bene esse testimony is unassailable support for that finding, the conclusion below is simply the right answer to the wrong question. The court did not address the facts in dispute concerning the validity of the Trust so as to determine if the authority to vote the shares now inheres in any Trustee or remains with Shelden. Nor did the trial court find any facts establishing the manner in which the party in control of the stock may have utilized that authority to elect corporate officers authorized to withdraw corporate assets from corporate accounts.
Thus, in sum, the district court does not appear to have scrupulously hewn to the issue of determining the legitimate corporate officers or agents of either corporation. Nonetheless, the facts permit a narrowing of the possible results in this matter. First, the claimants to the money represented by TCVI argue that the Trust may be wholly invalid. If this is true, then Shelden has, as noted hereinabove, always had the exclusive authority to vote his stock to name officers of the companies. Absent any evidence (and there is none) that he voted the shares, the proper corpo *442 rate officers with access to the accounts remain Young and Alger Shelden, Jr., who are named on the original NBD bank records. (The officers would not be Young and Detroit Bank & Trust as found by the district judge; this confusion is again due to mistaking the identity of the Trustee for the correct issue of identifying the corporate officers with access to the bank accounts.) If, however, the Trust is valid, then Young and Alger Shelden, Jr. may still be officers of FDS Land and Windigo Ranch, or the proper Trustees may have used their authority to name new officers, although the exercise of that authority to elect new officers, if in fact it occurred, is not apparent in the record. However, as previously noted, merely possessing the authority, through control of the corporate shares, to name new officers does not resolve the inquiry as to the identity of the corporate officers, since that authority would have to be exercised in conformity with the corporate bylaws and the law of the incorporating state.
Thus, the majority is correct that TCVI, and its elected corporate officers, can state no claim to the funds, inasmuch as a finding of Trust invalidity would leave the authority to name officers with Shelden, and a conclusion that the Trust is valid results in the clear finding, as stated by the majority, that Young and Detroit Bank & Trust are the rightful Trustees and may select corporate officers. However, as discussed, a resolution of Trust validity may still be relevant to the real issue at bar, since resolution of the proper issue of the officers’ identity requires identifying the individual or individuals with the authority to name officers and then determining if that authority has ever been properly exercised. Absent an identification of the current lawful corporate officers, it is hornbook law that a release of corporate funds to one who is merely the personal representative of a stock owner, even if the identity of that representative is totally certain, would be an improper conversion of corporate assets in corporate accounts.
Because, on the present record, the identity of the lawful officers of FDS Land Co. and Windigo Ranch Inc. empowered to control the corporate assets forming the basis of the present suit remains both factually and legally unresolved, I would reverse the grant of summary judgment and remand for a hearing on the proper issue.