honor's seeking a reversal of the circuit court's order granting summary judgment in favor of trustee joan the colo and seeking reversal of the court's interpretation of the  were clearly intended to provide the beneficiaries with a safety valve and an oversight check on the individual trustee let's take a look at the settlers intent as expressed in the trust agreement the intent is not presume but rather expressed in the document in its entirety and it must be read as a whole document can't be piecemeal or moment the trustees power to appoint and remove substitute trustees may be exercising their discretion so the trustees given a certain amount of discretion but the focus of our argument this morning is and the trustee shall exercise shall be exercised if directed in writing by a majority in interest of the beneficiaries of the trust so the trustees power shall be exercised if  writing by a majority in interest of the beneficiaries of the trust ok fair enough when you use the word oversight i thought you were implying or leading us to some suggestion that perhaps the trustee had  performed her job appropriately and that seemed to be the way you were going early on in this case to talk to us about what happened that caused you to as your colleague would suggest change course and the removal for cause well i think that what caused us to to change course is that the document authorizes the change obviously there is considerable hostility and disagreement between the individual trustee who you know resides in boston our client and his children in essence as you are as you may be aware this trust was created by the plaintiff's father and for the benefit of the plaintiff and his children so issue really what brought this case to who i had was the trustees refusal to to provide dispersement for what we believe to be educational purposes the trustee in a council categorize it considerably differently and so we believe that when you started it was it was let's get her out of there for cause and then after a couple rulings it seems like you change course so if in light of the fact you change course in your i view slee entitled to do that of what interest to us is the oversight powers that the beneficiaries are supposedly supposedly have over the ok how would you argue against what your colleague is talking about as to the roles of a substitute trustee she would have us believe that a substitute is sort of a designated hitter comes in and does something for the fine substitute teacher i agreed is a short term period and it's a great question this is is it too late for us to be substituted but i think what's important to know limitation doesn't hack on the law or lish around the law can you direct this to some you know trust treatise or a trust case that gets down to the sort of picky on detail that we're talking about on the issue of jurisdiction presumably of going on there is a specific article it's a specific article in this document distrust document article nothing that relates to the jurisdictional appointment of a limited trustee so the and of course if the corporate trustee is a safeguard for the trust beneficiaries of the assets and serves as a check and balance on the individual trustee when asking for anything but the big corporate fiduciary in keeping it in line with the appointment of a trust a corporate trustee is no no longer necessary and but i think we need to take a look at the context that case the context of that case was harris bank and trust came in and said we want a reason why i don't know i do you know what i was nine hundred eighty two i don't know the answer and i don't think anybody in the courtroom today was involved in the case in one thousand eight to now but we do have you know certain records from it that would indicate there was some kind of a to look at what occurred under those circumstances and what occurred in the circumstances you know is harris comes in and says we want out and the court says there's no longer than the subsidy of a corporate trustee i don't believe off the the spectrum of of existing positions that have that positions she still exist well i would respectfully suggest that if the court reached a conclusion that perhaps the order should have reflected that they for forms of trust and eliminated the provision of the of the corporate successor or co trustee that is not included in the order in to the best of my knowledge certainly is not included in the record but we have those harris coming in and saying we resign and by agreement of the parties they resign now and i acknowledge that there's been a extended period of time subsequently in which there has been no corporate  language specifically laying out language this is what we're changing this is what the new clause is that's not what happens in eighty two and eighty two there's no language that says and we are deleting from the  what about or run by your time here but what about the issue of fees i want to give us a couple minutes here with a man that i think that you know we think we believe that the trustees conduct because of the documents provides for a mandatory response a mandatory compliance with the direction of the beneficiaries we believe that the trustees hostile response is versus the northern trust case how could we go there you know thinking about this issue how could we go that way in light of the fact forget about the rest of the case but the case started out that you wanted to have removed for cause i mean she's supposed to lay over on that one roll over and play that no i don't think she's supposed to roll over and play dead but i think that but i think that certainly could have been a scenario to bifurcate across involving the  involved maybe but then then when you say you don't want to have her removed you say we don't want to remove we want to have a t g take over all her duties i mean that seems to use your word hostile to the trustee and isn't she really required to defend that i think she's required perhaps to defend a removal i don't think she's required to defend under the terms of the trust in which she's another to be appointed to assume her powers wouldn't she be required to defend against that i'd respectfully i don't think so because  i've been involved in many scenarios where a change of trustee occurs peaceably and amicably but if she if she was were lying in bed and placing a different interpretation on that last sentence in the eighty two or giving you or isn't she required to say well not to acquiesce in that and to defend against that that position the longer exists it's been removed from the trust i can't disagree that intellectually if the conclusion is that she can cheat she relies on the nonexistence than then the answer is yes but you know we've obviously reached a different conclusion in the in the eight to order in terms of the existence of the  specifically at that point the chance required reforms trust clause article eight easy and states important part of the quote reforms the trust of the testator's will to provide for the appointment of one or more successor trustees we believe that you know we pledge that alternatively and know specifically that there is a provision in the trust that provides that a quick court co trustee or a corporate trustee basically controls the assets controls investments and and custody of the trust corpus the i think it's worth going back though just for a moment to the substitute trustee issue and i indicated earlier that we believe that settlers and ten is quite clear in allowing the beneficiaries to make this change  this predates the drafting of trusts in which to date is much more common in the context of the use of what is known as a trust protector so the provision of it exists and in article eight easy which allows the beneficiaries to require the trustee just appoint a substitute is really the what i'll call the trap door of what today trust documentation  trust protector and of course the trust protector is a person generally appointed to allow the beneficiaries to change trustees and to really change course midstream so all in the late sixty's when this was done  know that concept hadn't hit us in the state world and i would respectfully suggest that that's why this is contained here and that's why we believe if you read the document it's entirety it really he have limited the last sentence to a point and remove rather than trust the ritual of yeah or just trust me i'm sorry my tray understand the question well you're you're taking in taking that sentence apart right think i think around her neck in the prior portion of that sentence it allows a trustee discretion so it says the trustees power to appoint and remove substitute trustees may be exercising their discretion and shall better tortured construction of the language and as the court's aware in the interpretation and construction rules of construction relating to wills and rules of construction relating to trust and of course this is a test of every trust created under mr spencer's will that as you read just this document in its entirety the conclusion that we separate persons or six separate powers in conjunction with that paragraph we believe that again if you read this in its entirety you know the conclusion is the one that  proposed in as much as the jurisdictional limitations as i previously mentioned in article mine exist there's a provision right on point there's a provision relative to again th morning your honor sir my name is nancy delicious and i represent the trustee so i have some answers to the questions that were raised and i'd like to start with the substitute trustee with if you read this trust agreement in its entirety you see that it was absolutely clear that this at work intended to give the trustee folders question or absolute discretion to use the words of the trust agreement in making decisions about distributions your honor you had mentioned said this case to start out with trying to remove the trustee and insisting additional distributions those allegations are now gone and it cannot be contested that my client has in fact been complying and defending with the trust in making distributions she's made tens of thousands of dollars for college and graduate school she has said i don't think they care or pre kindergarten to wish on which is daycare i guess it is within the context of this  trust agreement the final direction in a very clear direction i think on the part of the set lawyer is that the trust has to be administered in such a way that no distribution shall be made which in the opinion of the trustee is detrimental to the beneficiaries on self reliance giving to attorneys fees my client has done nothing except defend this trust there are six adult beneficiaries were named defendants and they've chosen not to participate in this appeal there was a mention of hostility between the trustee and everybody that's not true there's obviously some tension with mr spencer but the two adult and she has no contact with the miners obviously but even if there were disputes the language of the trust does hold while on the phone distributions which is not always the case true and it also provides for no distributions whatsoever she can just decide not to do anything now she has in this record shows she gave him a mortgage on his house during a divorce she gave him i think it was twenty thousand dollars for purposes of an emergency which i think was health related ticket to the substitute trustee provision all of your honor so i believe him noted that section eight eat clearly say it says the trustees power this is the last sentence and matey power which power because there are many powers i'm listed in this paragraph and it's the power to  appoint or remove the plaintiff as justice smith has pointed out emphasizes the word shall shall be exercised if directed in writing but i'd like to emphasize the powers still to decide the scope of powers or discretion to be given to a substitute only the trustee has the power to release a substitute from liability at the end of the  term and only the trustee has the authority to accept resignation the plaintiff's reading faces the words to appoint and ascertain the intent of the set work and to give effect to the plain words of the statue it's been argued that article nine applies and and unfolds substitute trustees and other jurisdictions and that's true there is an extra section talking about substitute trustees but if you read that section it plainly only applies to property in the other thirty five of my brief this this truss was written before the trust and put us in mantid codified the common law but there is some often as the trustees deem it advantageous and he made the analogy that well i can line is limited to property in other jurisdictions but article eight he could be i don't know presumably temporarily because of some requests where you know i was thinking yesterday maybe there's something to the trust he doesn't feel capable of handling for whatever reason parties specifically litigated if there should or would be a corporate trusting there's an  about complying with the trust and not rolling over to demands for pre kindergarten to question the fact that it was actually litigated can't be controverted in the summary judgment motion the question was what where the property records go because in the trust it stays with the corporate trustee the court says well give it to marie individual trust then the guardian ad litum argues no you should have a corporate trustee and marie argues no you only need one trustee he actually reliance on section eight d to say they mention one or two trustees were trustee talking about legal title not having to pass it would be automatic in the books and records would go to the next trust you know there's been some this quite has to construe not just the trust but also has to construe the past orders and in order to do that i think you really do have to look at the court files to figure out what was the basis for doing that which is actually what happened to me i was faced with summary judgment i went to look at eighty four work although it took a long time for the warehouse to deliver these files because it was moving i get to the eighty four files it talks about the eighty two files now i won't do it so can't beat by a majority of the simply kirchner's it must be by a majority of the adult beneficiaries eighty four had nothing to do with the corporate fell there any questions on successor no we're happy ok moving  right i think i'll just for these reasons your honor in the reasons stated in the brief i would ask this court to affirm but i do have to say it's not tortured reading this trust as it was a twice it's pretty clear and i would ask the court to affirm there's no question what this point it wants to do is remove her if not directly for a cause which she can't do then interact play there's nothing in the agreements that are valid being there's nothing in the trust that permits the beneficiaries to direct the trustee to turn over all control and that's really what they want in not distributing money for early childhood education and you know i practice trust in the state's law but i read the newspapers every day as does those runners is that really what she was saying th appropriateness of issuing a distribution for that purpose i which they just disagreed and that that was the genesis of the conflict between your client and the trustee and that that that's all i really took her comments the say and not that you know even if even if the trustee was wrong about that since you're no longer saying that the trust should be removed for cause why do we care you make it as always a great point i think that at the end of the day though what counsel did say was that the trustee retains the discretion to appoint him remove the substitute trustee and the trustee retains the power to basically determine the duties and powers given to a substitute trustee i would respectfully suggest that if that is the case it leads to the conclusion where the trustee can appoint eight substitute trustee with no power this document appropriately could not be read to allow for appointment removal appointment removal or appointment with a little or no power or removal appointment removal it could lead to nothing aware there are very few organizations or banks and a g g and a few others that have trust powers they have to demonstrate certain liquidity they have to demonstrate certain ability and the li again if you read just document in its entirety that our conclusion is the conclusion that an accurate reading in an effort to determine the