that assertion is the fact that this is a question interpreted in section six of the seed and will that section of the will gave the executor the power to that is a question of law of interpretation if the court chooses to interpret that section in another room as we will explain the order of the truck or originally out that it's not merely section six that is important here but section five of the will also gives the executive power without approval and she is a real by by virtue of that relationship she is a relative of the season and pursuant to section six she's asking for the given power to create the trust the guardian suggests that the parent would not be an appropriate recipient of the funds to administer for the benefit of minors but that the maid must be awful would not be an insight into when you say hearing where there are any witnesses presented who were placed under oath and testimony was take you know it was just are going to consider what evidence is there in this record what if there's arguments of counsel in the record message that this court may be sending in his decision is to what extent are we going to allow a trial court to substitute its will in judgment for the that's rewriting the scene and there has to be a very very high stadium that the court is going to block when it is going the family who should be a trustee a successor trustee in that case who was the successor trustee and they were the intention of the creator of the trust the an interest in wishes  beneficiaries in the promotion of the property ministration of the trust so when we look at the first factor the intention of the creator of the trust will that's an interesting factor in this case because the person creating any way suggesting that any of the any of the three individuals my clients mother who was suggested you know the cuzco indian army are all man in carmichael rutman i'm not suggesting that any of those persons are not capable of handling their function as a custodian and are presently nobody is a bad person here and i'm not suggesting that now it appears to me from his report and what he said that they're these people aren't heard are they're going to they're not capable investing that the miners money it's just that the trustee and the miners don't get along now wouldn't a court need more than just a disagreement as to personalities and in fact changing what the exact figure passing as well will be the  what the executor entails and if he had chosen his side specifically said i want my son to be the executor of my grandchildren and the court down the road after he was dead decided well i think it is in their best interest that i somebody else be the executor with the court have that i mean trustee with the court have that kind of discretion in dealing with the the minors the state yes they would have that discretion and that's what happened in this case trustees and the parents of the the minor children ok you said distrust there's nothing in the record that would that would you would distrust these two people from acting as trustee because they are a people does not mean that they would act in the best interest of the children it does not mean that they are the most appropriate people to service as fairly common after a divorce when you think i don't know i think in this instance that that may have been the case and i think there's evidence in the report to suggest that phylum the divorce that was the case and i think that that that leads to the poor recognizing that the court did not have to have a finding as to the truth or falsity of in the allegations being made the court said that he wasn't going to spy for the truth or falsity of the allegations and that but the court could not ignore the fact that those allegations were there and were being made and were rather reflected further in the guardian light of the report regarding all the animosity and just from between these people after considering all the factors what the what the poor rule was it would be the best interest of these children to hang out the corporate trustee appointed now the executor argues it was wrong too for the court would bow its equitable powers because he says there's no minor interest in it in congress and there's no adversarial proceeding involving minors interest well this whole issue arose when the granddaughters filed a petition to their interests so i think there was a reference earlier will certainly if the executors suggest a convicted bank that be a bad joke or and i believe it will be agreement that the court would step in and say well that's not appropriate so i think there's an acknowledgement that there is limits to the executive course of discretion in naming these trustee and what the trout were did is this or does adopt a no stick with the lack of standing is that near brief it was final yes it was it was in our brief we it was his in our motion to dismiss and in our brief paragraphs i believe we asked the court to reincorporate the motion to dismiss think at this point and i do remember that from your brief but i think if there's evidence in the record that was hearsay it had to be objected to a trial level be preserved