beneficiaries would like to have a few minutes at the end of my initial remarks to say couple of things and i'm going to take long and we'd like to reserve a few good four minutes for a bo die of all beneficiaries here and neighbor describes who are living at the date of my death the trial court read those words all beneficiaries to refer to only some of the beneficiaries in the will and that decision would cause the trust to terminate in twenty thirteen as indicate that there was some sort of logical problem with choosing you to want to for it's not just for one that's that's what he said and and so there were and the way this procedurally went was there was a on one in four and then the trial court said well i think three is really the one and then there was a motion for three where the trial court said about interpretation three and why really why he could not read the language as written i can pull out of the opinion  concerns one of them was that the trucker seemed because cern about just the rule against perpetuities in general are we going to be running afoul of this to me that's not a concern that should motivate the decision because i think everyone in this case acknowledges that meaningless and that's the language that i'm reading from his order there he said he seemed to think that if it's if if that's not the way that if the trust has from a ten or five that we don't really have a reason to to worry about four and therefore we just reading language out of the will the answer that i think is is twofold one is for does a lot of other things besides germination it provides what's going to happen whichever way it terminates but also some paragraph or remains a life terminations provision under any reading and that is that's because what it says is when the brothers line when hartley harper's brothers line dies out which we hope that doesn't happen soon but could happen today if all those folks are in a train wreck today the trust will terminate today and so perry of course is the paragraph that does that that that  that mr harper provided for which was let's run this out as long as we can to my brother's line and only when we had a perpetuities roadblock or they all die out should we terminate it took that and cut it short by twenty or more years which is which is an improper way to read is your honor that the there are major beneficiaries positions in this case have changed over time and i think that's i want to mention that because i think it's a danger of reading the document other than the way that it actually is written and you're aware that the position changing over time is the assertion made against the trustee i am and i'm happy to draw the distinction between the two because what what happened i'm talking about in this very case it in the lawsuit when we got a light issue there there have been different perpetrations have a kid starting with a the documents ambiguous there are four different possible readings we don't know what it is that was the initial claim and then it became well go with interpretation for then three now both three and four and and so they're saying that we should correct what this is a mistake in the document and rewrite the will to correct that mistake to carry out mr harper's intent but they won't they don't know which one it is which what the intent is it could be interpretation for or could go twenty one years later and it could be interpretation three they're advocating for both of those with respect to the concern your honor noted about historical interpretations of the document judge there's not a full record on that because this was decided on cross motions so we don't have all of the evidence or history of what i would consider extrinsic evidence these are what people said over time about what the will means and going back to nine hundred thirty three is there really is one so we don't know the full record what we what we can say is there were varying attorney didn't claim that at the time by the way but they claim it now at that time the bank said we think we have to read the document as written we think there's only one interpretation that's what we now call the turkish what they now call interpretation one and that's been our interpretation since then not not not only during the litigation but before that's been a consistent point of view but on that score i want to point out that what the meaning that the parties ascribed to the document whatever somebody thought it meant in one thousand thirty or nine hundred sixty or whatever else is not going to be controlling here this was a case decided on cross motions and it's a case in which everybody in the trial court acknowledged there is no ambiguity in the document so we don't get to what somebody else might have thought even if we were in an extensive evidence mode we would be talking about not what the banks thought what we have to do and and writers write unless there's an ambiguity in which case we have to go on a search for content it's just like a contract or any other written document we follow the document that's the intent that's that's effective and we try to carry it out and we try to carry out not only you know we don't take it apart as you said we take each provision and read them as a whole and see how they work together and how they work together is here there are two ways in which this trust can terminate well let me try to yeah go to a little bit of the intent of  concerns the remainder beneficiaries the very existence of bringing to beneficiaries might suggest that the intent of the mr harper was to lease something for them and their b he states up i wouldn't i don't know if i'd say exactly that judge he clearly intended to benefit them because he leaves the corpus what we call the corpus of the trust to them at the end of the when it runs one of the terminations did whatever that that may be so i think you know they're legitimately beneficiaries they're legitimately intended to take at that time what i think we can read from the instrument though is because that because of the way it's set up where so paragraph or says terminate when the brother's life runs period five says run it as long as the law allows and then if we had a proposed violation cut it off what that says is we want to pay out to the income beneficiaries that this was the brothers line for as long as we can under either one of those alternatives and then we headed over to their major beneficiaries but i'm not suggesting that they're not intended to take at some point it's just a question of of when and the concern i have with that what the trial court did here is that the trial judge cut it off too soon a good margin and so what that means is that the brothers lying to mr harper clearly intended to benefit will be short and that's not the way we should read i also have a question regarding something i'm unfamiliar with and it's basically because we don't run across very many of these sort of cases but the trustee came into court seeking to convert the yeah trust in some manner but i'm not sure what the consequences of that conversion the day there is a tension there in how you invest so if i me and i want to if i want the money to be generate a lot of income up put it all in a bond or something else it's going to generate a lot of current income as opposed to investing in the stock market and hoping that i'll be better off ten years from now may not work but there's a tension between those two things and so trustees have historically struggled with that and had a problem with income beneficiaries rising generate more income and the other folks are saying no preserve it for the long haul and build that up and those are in tension the legislature helped out trustees a few years back that the provision isn't very old and said what will allow you to do is to convert trusts that are in this mode where there's an income beneficiary in a separate group of or major beneficiaries into a trust where well let's you invest for the long haul which theory will benefit everybody and instead of but you won't have to be worry about income we'll just skim a certain percentage off the top whether it's technically income or part of the principle we're not to worry about that will give you a company fisheries say four percent a year and so that allows you to invest in a way that helps everybody hopefully the way you might invest your own assets if you're a long term investor but the income beneficiaries are hurt by that they're just getting a certain amount every year off the top that's how we started and we what happened is this this issue that's before the court today was raised as a counterpoint to one of the things that we had alleged was and it was significant to why we're going to court and seeking to convert to this withholding unit trust it was how long is the trust going to run if it's going to terminate in a couple of years there's not a lot of sense to go through the initially said that interpretation for should apply which would have terminated the trust in one thousand nine hundred two they have never taken that position in a court proceeding or anywhere else before anything except when we went to follow her case so it was kind of a late to the game interpretation but i hope that addresses yes it does five and the statute that deals with the rule against perpetuities and the question is why you know what it did the existence of the statute and its similarities to paragraph five come up during the course of the savings clauses this concept of the savings flows there's something untoward about that or there is something that if they should be given less weight than any other provision of the will is just boilerplate it's not really seriously considered you know who would do this and so we address that by spike pointing out that there's number one there's there's a statute that it up so very similar provisions as a default rule basically if somebody doesn't cover it in their trust the stuff she would kick him out so that it's very similar as your honor pointed out so we said you know this isn't anything out of the ordinary we also noted that there are a variety of kind of form books practitioners guides commentary thing else that says look this is the way you handle the situation you've got a rule against perpetuities which is a pretty harsh come along consequence hey is this trust going to be invalidated is there going to be a problem back in nineteen thirty two i don't think the statute that we're talking about was i was in for so you know people what people did was what mr harper did which was look we're going to let this run as long as possible but well i don't want to run afoul of the rule so i'm going to put this provision in and  cover that that possibility and that's that's what it's there for and it's not that it doesn't have meaning or that it was just a throwaway it's real it was intended to avoid a social problem i think based on this case i think i see up on the movie body heat it's written and it should be enforced that way without additions or subtractions thank you very much they thought it only fair that they be given a very brief opportunity heard they asked me to speak to you on the found at page three if the opinion that it was mr harper's intention to produce income for his planned relatives as long as possible nobody disputes well determining who mr harper split relatives are you so uncomplicated mr harper had no children he had two sisters neither of them had any children he had a brother who had two children those two children therefore of course were mr harper's niece and nephew that was his bloodline that was who he decided he wanted to provide for as long as possible that was a d by writing and drafting paragraph four of article thirty the will what paragraph or says it essence is known as the remainder beneficiary shall take anything until the death of my life raft the savings clause the drafter of the savings clause shows as the measuring rise in paragraph five all beneficiaries  wife's sister and his wife spread it with this terrible nine hundred thirty two or three years old eight years old in fourteen years old so it was his intent to refer to them as measuring lives to further the intent of providing care to his bread line as long as possible and that's precisely what happened so what we have here is simply their story are still a lot of each of them  still alive wonderfully wonderfully for my clients because that means the trust is still alive and it doesn't terminate until twenty one years after the death of the last of those three to die their b unambiguous on its face start shifting clauses from here to here to here to to comply with what his interpretation is that's not what wills are about there about his judgment and said what the intent of the test it please the court my name is brett nolan i represent a group of fifty three four major men and women who have waited over seventy five years to receive corpus of the trust originally created by hartley harper in one thousand for two i asked this court to affirm the judgment of the circuit court of july twenty fifth two thousand eight hundred summary judgment or face i want to begin by addressing your honour's initial question to counsel which is what were the circuit courts paramount serves i think t ignoring that that subset of peoples civically identified as when these people die the trust terminates and so i think that those are the two paramount concerns the judg interpretation of the three and then briefly talk about form one i think there's there's support for judge mackey's decision to uphold interpretation of the three for two main reasons one your honor mentioned before the play when we're addressing the rule against perpetuity it doesn't come into play when you're concerned when you know the proceeds of an estate going to a certain party and so the measuring life breath i want these people to take the corpus of my trust in the very next breath subprogram i say except for the fact that you're going to be measuring life and we know what happens then by definition anyone who has a measuring life is never going to receive a dime from appellate court decisions and oftentimes both sides the majority in the dissent contend that their position is a logical one and there's room for disagreement so i'm not sure that logic itself should be the driving force of a decision while the interpretation of a will it should be what we can divine from the language itself i think that right at i gree that there are limits to to that logical argument and so badly that that leads me to that the next clue that i all just to judge mackie's reasoning or his decision something else was more like that again agreed but i think it provides a basis for this court standing on for my trustee pertains and its hands any part of the principal for the purpose of thereafter raising the any will payments to my set sisters in plain english what that means is if the trust terminates during the time that hartl sisters were alive the the trustee should hold back part of the principal from the remainder beneficiaries in order to fund these gifts to his sisters and let me back up and sorry but this is true he gave gifts twin gifts fifteen dollars per year for every year for the rest of the life and that money was to be paid out of income and so hardly himself contemplated well what happens if this trust it if the trust for me to quickly it stiff the first some paragraph or kicks in quickly and ever and then the corpus is supposed to go to the major beneficiaries well then how are my sisters going to get their fifteen hundred dollars a year he realized that this thing couldn't very quickly which is which  but that leads me to my second point if you adopt interpretation of one you you assume or you find that hartley wanted to exert what i'll call dead hand control over his assets control from the great for more point is in excess of seven million dollars i believe not insubstantial it was very substantial nine hundred thirty two it was i would guess so it's clear the income that is being dispersed from the corpus a century of of control and put before this that the corpus is then divided seventy two ways or more it could be it could be many more people than that and i don't think that makes sense and in the final reason that  as opposed to sending it back absolutely if we don't agree with interpretation perfect that's absolutely true but this court can in a whole interpretation of a three or could could the adoption of the tradition of its own and still further regarding the cross appeal given that the circuit court shows interpretation of the three which put off the terminations date into the future is there any basis for a claim of damages rather than the main component of the damages would be the cost to them of having to fight this fight having to fight the trustee who again you know what it is it's almost a fight that they brought upon itself the trustee didn't the well your honor attached to the coward claim are a series of of memos and documents from from the trustee ok that are i think fairly identified that there is a place a lot earlier than it did and it would have saved it potentially saved a lot of a lot of heartache especially if this court were to adopt interpretation of before which is that the trust should have terminated in one thousand and two you know to repeatedly two clues in the document that he said indicated intent on the part of mr harper i'm not sure that we ever have seen or heard what that intent boils down to what it is and as i said they've ever hated two different or patients that are twenty one years apart so i'm not sure what the intent is but he seemed to focus on certain people named in art in some paragraph four and he said well these people were intended to take as their major beneficiaries i don't think so and i'll point you to the language what it what the take so to say that they're that terminated of intent mr harper really doesn't support interpretation even interpretation three what mr harper provided was that's the family line that they were major interest is going to go down but not to some particular people who who had to take the fact that there will are the trust could terminated during his sister's lifetime sure it could have it might not have and he provided for both possibilities to terminate in and either way out those things or not they don't  patient over the other the bottom line your honor says that mr harper's will works just fine the way he wrote it and it should be enforced the way he wrote it without additions without actions so we would ask that the t