foundation no longer exists that's emitted it's uncontested that the trust instrument provide it's that if that entity ceases to exist as a tax qualif entity the successor beneficiary shelby determine by the trustees in their sole discretion from time to time that's uncontested it's uncontested that with that means in the context of this trust is that both or designate the plaintiffs in interest as a successor beneficiary so that's a summary judgment evidence it's uncontested and the conclusion that we would ask you to draw is that you know clearly doesn't recognize the split into these on the that's probably the wrong term has been for sure well at the time that the nd provision takes it the original marshall arafat heritage foundation ceases to exist so now what happens to two trustees decide from time to time who the successor beneficiaries are going to be and for two years preston agreed exacting in good faith let's try to make this original beneficiary to be divided and what provision do you say specifically says notwithstanding what louisiana law would otherwise allow the trustee under this trust cannot divide this trust into division not the assets he says the market value of the assets not the s's themselves yes the division shall be based on the fair market value of the at fair market value the asking of the assets of the trust at the time of the vision and so at the time of the division the potential for future distributions was not an asset of the trust and that is provided for by a case that they cite which is the louisiana supreme court in or a marshall charitable trust decision in which the court specifically said yes that st quote title to the property is vested in the trustee secondly until the funds are dispersed they're not the property of not case mr marshall in this case it would be the mortuary foundation and rd quote mr marshall in that case in this case the marshall heritage foundation did not have an independent proposition that you that you can't us and we don't contest it that you can divide trust you can divide trust but we're looking at this as a beneficiary not as a trust it happens to be a trust and it doesn't it doesn't provision in addition to the to the present assets point i just made doesn't impose any obligations or of facts or duties on other rd parties like al gore's or don't need doesn't change the protestant trust instrument it allows the translation to divide itself but that doesn't necessarily mean as a matter of law that that has effect on a rd party which is the protestant trust it doesn't rewrite the trust instrument and in fact if you look at the trust was an amended is immaterial they give three points for that one is the one that you want to point to which was section ninety two thousand and thirty the other two things that they point to our resolution of the marshall heritage foundation well that's the beneficiary many fishery doesn't get to decide who the successor beneficiary is only the trustees or the trust instrument can decide that and that is provided for in th times you've characterized the languages saying if the marshall heritage foundation its foundation ceases to exist right but as you note that the language in actually says it says i'm reading from it it says if the marshall heritage foundation is not an organization described in three r c sections at the time any payment is to be made to it now as i read that i mean that's required by the interruption of the by i r s to have that right in the purpose of that to just make sure that the marshall heritage foundation remains in compliance with those sections that that's right have to include well i think what they're saying is if at any point over the twenty years the original marshall heritage in other words it's not saying well if it if it if it divides then all bets are off and then the the other clause kicks that's true your honor but i think just as a matter of logic argument would be that if it if it if it doesn't that marshall heritage foundation i don't think it prohibits on its face and there will be division argument is that you can divide it but then at that point saying that if you do divide it all bets are off which is that to me that's putting a lot of white on a very small frightened that because it is all you're doing is changing one charitable trust into to divide in success it's totally success or interest to wealth and it  doesn't it's characters and changed it's well and arguably that i mean that's that's the practical effect blame of it's change but that it well you have different trustees you have different foundations you have different on funding devices so we've got supreme court what's your best case for a reason supreme court that speaks for the chief judge jones question about how how are we putting too much weight on that language i don't have a case that speaks to that besides the one that i documents that they point to i think are telling because the st document is found in mr cook's or dr cook's record at excerpts of page one and two and that is the minutes of the old marshall heritage foundation that they claim on divides the trust and if you look at page two it doesn't it talks about on dividing the foundations assets an obligations including the excess distribution carry over reflected on the foundations for ninety p f doesn't say anything about transferring the beneficial interest in process on or assigning that interest it doesn't even talk about process only doesn't talk about a beneficial injures what's the what's the point of dividing the foundation well i think that's pretty clear in the on documents that were submitted on and in our in our and i think everyone felt at the time back in two thousand and thirteen let's separate these two trust let's separate the two drew brothers and let them each going their way and that was your reading is right that would mean that there is no income to separate  as was laid out in the order in those motions and everything was fall back into if there are two thousand and thirteen then i assume depressed him would have taken his half approximate and designated his new foundation legacy foundation as understand the intent on the st stage and then it wasn't followed through with the nd phase and here we are with this problem exactly of honor and i think it's telling that in the document it doesn't say that the plaint interest will be a beneficiary of the process and trust it says it will be the beneficiary of one of the divided new proxies on trust which don't exist because it never happened and then finally the only thing i would point to is the  document that they point to is this would or from the th j d c which indicates that carries out the deakin taishan and says that the old marshall heritage foundation will be divided interesting leonov in that same document in that same order it says right above that that the protestant trust will be divided which never happened so they were part and parcel with each other look at those documents and green the intent of the various parties to that to this transaction we understand what they were aiming frankly i don't think you need to do that i think all you need to look to is approximate st agreement itself but if we in well if i get if if chief judge joan is right that that language doesn't actually settle the question don't we have to look to the settlers intent well that would my my my superficial understanding is that there was a motion to recuse filed and that they are waiting for an ad hoc judge to be appointed by the supreme court to hear the motion to recuse and may have there's so many proceedings i last paragraph beginning on that page twenty preston now raises the new roni of appellate argument should be deemed to be waived and how does it if we agree that there was waiver what does not end all that does that in the entire meal no your honor i don't think so because that was just related to article two thousand louisiana truscott we simply believe that he should have brought that for that at the st instance before judge fallon and therefore at least that particular organ that he should not be brought in for your honor although i am prepared to address his argument a very a with respect article two thousand and one off of that trust for a period of twenty years should go to charity it was a fully funded trust and preston marshall by his actions as a warning these desires as counsel for a bill at the moment mention the effort here should be to try to abide by the desires of the seven or of the trust and see that those wishes are carried out and they are not preston marshall has locked up millions of dollars here that should have been going to charity now for a period after allowing it for two and a half years as not only locked up the fines the through his actions has caused the assessment of taxes interest and penalties just for year tw seventeen a line of almost three million dollars that money has probably going to have to go to the r s it has been assessed and it's not going to be available to go to the new marshall heritage foundation and thence to charities such as tulane university judge fallon correctly hale that the marshall heritage foundation and bought out his address it will mean the new marshall heritage foundation is a b  to you by appellant number one he stated in his original brief at that the three issues that should be before this court were whether the beneficiary status of a been a fairy should beneficiary trust can be transferred to another trust against the explicit language of the donor trust in treatment as i have already heard some discussion from your honour's there is no such a language in the process on trust that prevents  decanting of the trusts and dividing of the trust and more on that in a moment another he says the other issue on appeal was whether the beneficial interest in the potential potential he says future income distributions can be considered to be an asset of the trust on the effective date of the division and he points to article two thousand and thirty of the trust code well as both the louisiana supreme court and this court ever beneficiary as well as back creditors which this court has held it clearly it's an asset as found in article two thousand and thirty and then finally in his original brief appellant says even assuming the plaintiff in interest should now be considered a beneficiary of the barracks or suntrust presson was in breach of his duties was not in brief for his duties given the language of the trust and chairman reasonably calling into question the new foundations beneficiary status the issue that book about a moment ago and the potential adverse tax consequences well the tax consequences that were hypothesized oppressed and marshall are speculative they're not supported by the very opposition to our motion for the court to take judicial notice of this tax assessment press and marshall states and the issues before the court is whether the morsel heritage foundation is a lawful and properly designated beneficiary approx isn't narrowing and narrowing down in his answer to the lawsuit that we filed some time ago presson more from gave only two reasons for his failure to proceed with authorizing these payments those who reasons were dr cook is not a valid trust me if you look at the briefs on appeal you'll see that that argument has now been abandoned his nd reason to get him in his answer was the marshall heritage foundation was not in bean at the time of the creation of the process of intros both of these defenses by the way were rejected by judge fallon and apparently been abandoned by preston in this appeal his post op rationale for not allowing not authorizing these distributions in the rocks and sun for us to the marshall heritage foundation have changed with every briefing that he has filed in the proceedings including his opposition to the motion to take judicial notice he argued he has private previously argued that ms marshall was attempting to control the process on trust and that was going to cause catastrophic tax consequences well judge valerie rejected that argument he said even if there were tax consequences there is no evidence that mrs marshall herself could not bear those tax consequences he questioned whether or not the morsel heritage foundation was even a qualified charitable tax qualified entity when we produce documents that show the hour s and recognize them that argument has gone away he of course has made the argument that the old marshall heritage foundation couldn't transfer its rights to receive unpaid future distributions he said well when the marshall heritage foundation ceased to exist it was up to pres service for these flats it is a it is a language to main pain these status as your honor probably knows these clans or very strictly looked at the service and so it is very important that the beneficiaries that the charitable the beneficiary b indeed a charitable institution that's that's that must be met therefore that language that is pointed out by mr marshall is nothing more than an effort by the set lower to be sure that this process on trust  a taxable entity however it has an unlimited charitable distribution or contribution so to the extent it is paying out to qualified entity's there would be no tax that was critical and of course that is guide or to combine trust this trust was divided or to canted and by resolution unanimous resolution of all of the trustees of the marshall heritage about three million five hundred thousand dollars each each year for twenty years yet they're right they wouldn't have a guaranteed right to the six point whatever percent right there are and what they wouldn't have i'm is what is the point of creating two new trust when a ha they have no income exactly and that makes no sense it doesn't make any sense at all let me let me go further about this preston marshall thought that there was something untoward or something illegal or something wrong about dividing the marceau the old marshall heritage foundation and as such there would be nothing going to marshall legacy foundation or the marshall heritage foundation then he breached is responsibilities as a trustee both of the process and trust and  so heritage foundation because if he's right and nothing is going to go to these two derivative entities that stepped into the shoes of marshall heritage foundation then he's totally thwarted what his mother set out to do one hundred million dollars donation surely that is not the law but this litigation that's ongoing and you could give us your view the status of it as are the proxies home trust is to be divided half of the funds so contro so that he can do with it whatever it is he must have in mind to do there are these safeguards built in with two to trustees for the process of trust and then for these but that by the way is not one of the issues that mr marshall has raised on this appeal that suddenly you know if you read the resolution read the order from the judge  th judicial district court overnight charles they require it speaks of the props and sun trust and speaks of the marshall heritage foundation and it speaks of two other trust they marshall heritage foundation would be to can and into those to the trustees did not agree and press them marshall did not complain and no efforts were made there is no evidence in the record the press to marshall  than now years later following this lawsuit in the fourteen traditional district court to try and split the process on for us nor nor does either that the order condition up on the division of roxas on trust there is still there were statements in the in the record that that was one of the intended acts but one was not condition i would i would argue to the court that the marshall heritage foundation saturday and its trustees satisfied all of the condition found in article two thousand and thirty of the louisiana trust that what happened was when the marshall heritage foundation was decanted it did not cease to exist it simply became too and these two new entities stepped into the shoes of the marshall heritage foundation judge fallon was correct in all respects when he found that there was no authority that said that the marshall heritage foundation could not be divided in this regard he found that preston marshall breached his obligations as a trustee of the process on trust no no ifs ands or buts no conditions there he breached his obligations he was in bad faith the highest duty the do need fiduciary duty that he had to the proxy son trust and to his mother the set lower was to carry out her wishes and yet he came up with of these many reasons as found in our brief narrowing finally to the reason that we're arguing today to see what he could do to make it difficult for his mother and today we are faced with a situation with the tw in the order that he had issued initially state it without a bond but after a motion for reconsideration he lifted the stay he's affirming his finding here that there was nothing that would prevent the marshall foundation from from becoming a beneficiary to allow these charitable wishes to be carried out and for the pledge be honored to line thank you very much for your  beneficial interest to the new point of an interest in this case st i would argue that implicitly prohibits a transfer because it designates that entity that old entity as the no guaranteed income they would not have and they didn't the entire agreement was that proxima be split into the two funding trusts and those two funding trust would fund the two thousand asians and for whatever reason and what you won't see in the record is pierce's reason for refusing to abide by that agreement that was done in two thousand and thirteen where by proxy assume trust was split wide why won't he do that all the emphasis on preston why won't pres authorize a distribution's you could just as easily put the shoe on the other foot and say why won't peirce agree which everyone agreed to back in two thousand and thirteen unanimously to split borat's assume into two separate trust that would fund the motion and the memorandum which memorialize that agreement are in or record excerpts from thirty seven to forty seven and the order is in our record apps are excerpts of forty eight when you think that contrary to what opposing counsel said to split the marshall heritage foundation into two sort of contingent of the effectiveness of that was contingent on the proximate trust also beings so that if both pieces of the puzzle fell would place then you'd have the guaranteed income streams going where everybody intended to go well i think ultimately that's what happened but ultimately it would've been the split that it was contingent on it would have been one of two things it would have been and i understand your honour's not quite with me necessarily on the language in the trust agreement but it would have been either on the concurrent agreement  trustees from time to time as he agreed to fund the new foundations or what presumably would have happened is that they would have formally amended the two new separate proxies some trust to formally designate the to do separate foundations as the successor beneficiaries that's a president always intended to do in that case the income to the new split trust would have been guaranteed would be guaranteed it would been it would've been  along those lines on in terms of the change in pursuit position so called preston from the very beginning filed a declaration very early in this action we've always taken the position from the very beginning that the plaintiff in interest was not a formally designated beneficiary of the defendant interest the proximate trust and he said in his declaration filed shortly after the suit was filed because the whole thing was contingent upon your honour's terms dividing the process some trust after a couple years i realize it was it can be done so i think that should be done and i went to the th j d c to try to get that done now i will admit that after the lawsuit filed that's his position to this day but in the meantime after the lawsuit was filed his expert discovered that the plaintiff in interest had never filed the proper paperwork and so we added that as a reason and