be granted by the judge of probate to the trustee as evidence of his authority to act as such."

Section 10:

"Every trustee who neglects to give a bond in accordance with the preceding sections, within thirty days after the probate court shall fix the penal sum of said bond, shall be considered to have declined or resigned the trust."

From the records of the proceedings had in probate court, which for the purposes of this case are the only competent evidence, we find that defendant Allen did not comply with the provisions of this statute. It appears from the record that by petition he as executor asked that the residue of Mrs. Hitchcock's estate be assigned to himself as trustee; that the petition signed by Mrs. Gibney for his appointment as trustee was in his handwriting; that he knew the order was made appointing him; and that he claimed that he received the trust estate by virtue of said appointment. He was county clerk at this time and an attorney. In the absence of actual knowledge, which it appears he had, he would be charged with knowledge of the orders made by the probate court in these proceedings to which he was an active party. Not having complied with the law in furnishing the bond in the penal sum fixed by the court within 30 days thereafter, he must be considered to have declined or resigned the trust. The failure to file a bond as required amounts to a disclaimer. 28 Am. & Eng. Enc. Law (2d Ed.), p. 973, citing Daggett v. White, 128 Mass. 398; Williams v. Cushing, 34 Me. 370; Deering v. Adams, 37 Me. 265; Sawyer's Appeal, 16 N. H. 459. He therefore never became in law the trustee entitled to administer said trust estate.

1 Perry

on Trusts (5th Ed.), § 262. The fact that he proceeded to act as a trustee, claiming to be lawfully authorized to do so, did not change his legal status, and make him a trustee in law. As executor, defendant Allen had rendered his final account, which was allowed, and he had been credited with the amount as executor which was to

be charged to him as trustee, and was then discharged as executor. Therefore, whatever he did with the affairs of this estate after such discharge must have been done in some capacity other than as executor, and the claim cannot be made that acts performed by him claiming to be trustee were lawful because the same class of acts were authorized by the will to be performed by him as executor.

It is claimed that defendant Allen acted in good faith in taking upon himself the office of a trustee, and doing the things he is charged with, and acted under color of right. We do not think that the facts in the case warrant this assumption. His knowledge of court proceedings, and of the law and the orders made by the probate court, imposes upon him the necessity in this case, where the relations are those of a trustee to the cestuis que trustent, to satisfy the court by proof cogent and convincing of the fact that he acted in good faith. There is strong evidence to the contrary in the fact that he ignored the order of the court relative to the bond required, and filed a bond of less than half the penal sum which was never approved; also, by his conduct and management of the trust estate in absolute disregard of all the requirements of law. He mortgaged the real estate held in trust without order or license from the probate court. He sold lands and personal property (bank stock) held in trust without authority or license. He bought lands without authority. He borrowed money in large amounts to build houses on the lands of the estate. He borrowed money in large amounts to build a house, barns, fences, and so forth, upon land not belonging to the trust estate. All such acts and doings are admitted by these defendants, who each had knowledge of the authority on which he claimed to rely with respect to the transactions with which each was connected. As bearing upon his good faith, his testimony relative to the sale to defendant bank on May 25, 1907, is significant. He testifies:

"The way I came to give the deed was this. When I reached Flint on Saturday noon, May 25th last, I heard

for the first time that there was something the matter with the Hitchcock estate, so, as soon as I heard there was some question about the transaction with the Union Trust, I went down to the bank, I presume, inside of half an hour from the time I reached town. I found Mr. Davison, and asked him what was the matter, and about his words in reply, 'Let's go up.' I found Mr. Davison there, and he and I went up to Mr. Cook's office without any conversation whatever. At Mr. Cook's office the matter of the loans on the mortgage was discussed. I became satisfied from the discussion that there might be a question of the legality of the mortgages possibly. I became satisfied of that. When I became satisfied that there might be possibly a question, I asked Mr. Cook and Mr. Davison what their proposition was-what they wished to do or to have done. After some conversation in regard to the matter, they asked me if I wished to sell, or would sell, the Second street house and the Harriet street house. * * * The outcome of the conversation was that we decided they would buy the Second street house for the present worth of the contract with Mr. Sellick, and buy the Harriet street house for $2,500, and, as a result of the agreement, this deed was drawn up and executed by me.

This deed was made to satisfy mortgages which were correctly held by the circuit court to have been given to the bank "wholly without authority." And, further, none of his accounts in this record made by him to the probate court show these loans and mortgages to defendant bank, and in one of these accounts he credited himself with 135 acres of land not belonging to the trust estate.

The statute above referred to requires a license from the court to authorize the sale of lands or personal estate, also to authorize the mortgaging or pledging of real or personal estate, to build, alter, complete or repair buildings on such estate, or for any other lawful purpose. For the money used and borrowed to build upon and improve outside property no excuse is advanced except good faith. The question of good or bad faith on the part of defendant Allen was made the crucial question in the case in the court below, and complainants were denied relief because it was found by the court that defendant Allen

acted in good faith. We disagree with that conclusion of fact. The determination of this case, however, does not depend on the good faith of defendant Allen. Good faith is a defense only where a trustee, acting within the limits of his powers with proper prudence and diligence, commits mere mistakes or errors of judgment, but is not a defense where a trustee disregards the limits placed upon his power by law or by the trust instrument. 28 Am. & Eng. Enc. Law (2d Ed.), p. 1063, and cases cited. That this defendant disregarded the limitations of the powers imposed by law and the trust instrument is not disputed. The cestuis que trustent in this case were complainant Mrs. Gibney and her infant children, at that time of tender years. To all of them defendant Allen, claiming to be trustee of this estate, owed the highest duty to safeguard their interests. These children could not consent to or acquiesce in any act of Allen which was irregular, harmful, or unlawful, and the court cannot do it for them. They are the especial wards of courts in chancery, protected in all respects, and those acting as trustees for them are held to the strictest accountability. This is fundamental. The mother could communicate only by signs. She testified through an interpreter, and it is apparent that she is not a person of business ability, and also that she did not understand the transactions of Allen with reference to the body of the estate sufficiently to know whether they were lawful and authorized, and it does not appear that she was informed by him of the exact situation and his rights and duties in the premises. There are several material facts that tend strongly to show her incompetency. Her mother provided a trustee for her income. Mrs. Gibney, because unable to manage the farm of which her father left her the income, gave defendant Allen a power of attorney to act for her. Allen, in explaining why he put her 135 acres into his last account as trustee to show 250 acres in his hands, testified:

"The court is in charge of all people who do not have charge of their own property. I wished them to have an

opportunity to see what I did for Mrs. Gibney. The probate court has general charge of all dependents, I believe."

These facts, together with a reading of her testimony, satisfy us that she did not appreciate and understand these transactions relative to the body of the trust estate, and it is apparent that she relied upon Mr. Allen, and did not question what he did or proposed to do. He was an attorney and her only adviser as far as the record shows. Her conduct has not estopped her from questioning what has been done with the trust estate, as far as her interests therein are concerned, on account of her disability and her want of knowledge of all the facts and circumstances surrounding the transactions, and there is no evidence that she was informed of her legal rights or knew that Allen's conduct was illegal. White v. Sherman, 168 Ill. 605. There is no authority which holds that any conduct of complainant Mrs. Gibney, even if a perfectly normal person, could operate to deprive these infants of their interests in this estate, or relieve defendant Allen from strict accountability to them. It is not contended that these infant complainants could consent to any of the acts of defendant Allen charged with reference to their interest in this trust estate. They were non sui juris, and have such an interest in this estate as entitles them to the protection of a court of equity. Tappan's Ex'r v. Ricamio, 16 N. J. Eq. 89. The duties which defendant Allen owed to complainants and to this estate which he had assumed to administer as a trustee, and the strictness with which he should be held to account for his administration, are too well known to require restatement.

It has been insisted that by the will which appointed him executor he was authorized to make these transfers, and the will in the instruments making the transfers is referred to as giving such authority. The principal parts of that will have already been quoted. The last paragraph reads: