under the trust instrument the second the second heir we believe she commuted to determine that the trust the like the state interest was equitable rather than legally nature we believe that that argument not the like the state interest constituted a an asset of the estate and then to turn that asset over to the bankruptcy state so they could be liquidated expressed yes the bankruptcy court to determine whether this interest was property of the estate yes under section five forty one of the bankruptcy and i get confused about the terms that are used as between the equitable life or the legal life estate what difference does that make in your view toward whether something is property of th right up as the opinion of the bankruptcy court indicates in our brief as well if it's an equitable interest it doesn't come into the bankruptcy estate it would have to be a legal interest if the if the debtor is only held a beneficial or equitable interest in the life forty one but it's primarily the analysis that is conducted by the by judge lata below to determine whether it's equitable or legal and the case law which basically says that if it's an equitable interest then the interest is not does not belong to powers under the trust she felt controlled the have the ability to to deal with the life stage and that that therefore created situation unlike a like a state outside of the trust  south well the trust agreement if you look at it you look at section five of the trust instrument it is clear and i mean i think it's a big wish that says that she wants her son to choose as an asset ok of the trust is the residen needed to do to get to her decision that it was equitable interest was she needed to figure out a way to determine that that that was a beneficial interest or beneficial rain not a not an outright life greatly legal breach of the like the state if you look at  of real property in general transfers in real property you can grant a like estate and that's a legal interest as a prop that's recognizable legal interest in real property what she found was that there was a grant but it was not a legal grant it was an equitable grant and equitable rant that could be taken away to be encroached upon could beat him hindered by virtue of the trust powers and we believe that was incorrect she what she needed to do was find it that the purposes or intent of the mother in granting the life of state was essentially for the benefit of the beneficial interests of the son and that's why she went beyond the scope of the clear language that's why we we have a problem with her getting into the extrinsic evidence but with respect to the actual grade itself we think that that grant is as clearly set forth in section five of the trust instrument is a legal re you can grant a legal interest in the like the state the problem is when when you allow others to encroach upon that interest and lot of felt was that they were that the trust instrument and the beneficial interest that the therefore ok and so he couldn't deal with it as his as you wanted to it could not become two part part into the  issues of the this is a this is a review of her legal conclusions i think the facts are are we don't disagree with the facts per se we disagree with the fact with the fact that she considered the facts for   as to what they recall her saying to them and then we find out that while i can't test that fact per se i don't necessarily doubt that fact per se i think it was wrong to to consider that fact cases is from the eight hundred fortunately or unfortunately one of the seminal cases in this area but in that case it is quite different i would i would ask that you compare the two in terms facts here the the t with the court races is one that judge lot of didn't have to make a specific but some precondition to find that the transfer was affected into the trust it there's no question that teed transferring a piece of property into the bankruptcy of state which property then was the subject of a life estate that answers judge humphries question on the the first question which is the efficacy of a transfer of the property into the trust  does not answer the question of they spent a piece of it which is you know how could she determine that it was not property of the state basically that the answer to that question turns on what we're talking about the life estate interest the granting of a life a state interest is not an asset it's a great right the spendthrift what a spendthrift trust but a spendthrift provision does is it prevents a creditor property because it's been true british right but they were granted a life of state interest in the property which is an asset of the trust ok that that's their asset outside of bankruptcy right and if judge if if judge spend trip parisian only prevents attaching assets of the trust that's not an asset of the trust that's an asset of the class they were greeted like state and that's the argument i hope that i would directed the parties to enter into a joint pretrial strike that parties did so as part of that pretrial statement the party stipulated that the residence was an asset of the trust that the residence was an asset of trust when the case was filed in two thousand issue of ownership despite the fact that part of stipulated ownership despite the fact that there had to be ownership in order for the trust to have conveyed any type of like the state the court  decides well i'm not going to decide the issue of whether or not the deed which granted would provide the property to the biasing gain family trust and not the blessing going family residen that she didn't care and not following the stipulation then what we're left with is an advisory opinion which she had no jurisdiction to get i think the case basically sided so this court would have to dismiss the case because again we think the court doesn't need to remind it because shared or not falling apart a stipulation again the lawsuit was not not five miles on the basis of whether or really not my ideal result i don't think either party wants to retry this case summary judgment or otherwise we think the court doesn't have to reach that result if the court  testator's intent from looking at the four corners of the document under tennessee law the court can look at the certain circumstances and surrounding the execution things that were known to the proof in this case shows contradiction that this trust was formed as a spendthrift trust in order to prevent the bank from foreclosing on th not uncommon scenario and bankruptcy for family members to come out of debtors and that's what happened here and protect it for not only her son and daughter in law but grandkids and and subsequent beneficiaries down the line so that being the circumstances surrounding the execution i think that weighs in to the court determination that this was not there was no intent to create a legal wife or state here you don't have to create a trust if you're going to create a legal wife the state secondly to the extent the court accept  argument that well you can create a legal life a state within the confines of a trust why would you do that why would why would a sudden or intend to do that if the purpose of the trust's create a spencer trust to keep the house from being foreclosed on so that seidler wouldn't pay four hundred forty thousand dollars loan it to the trust create the trust forgive the debt all for the purpose of transferring the property trust and then turn around and have the trust create a legal watched light which is back again subject to climb to credit she said do you believe then that the bankruptcy court let me rephrase that what do you believe the basis for the bankruptcy courts denial of the turnover aspects of the complaint parties seem to keep saying that it's an equitable interest so it's not property of the state but as a three five forty one and i'm not saying that unless i for one c s in play with respect to spendthrift interest the complaint before the court only saw a determination of the legal wife the state did not seek a determination just as a self settled trust and in fact we sided case stipulation of the parties to the trust me the trust was the owner of the residence and the ownership of the residence was a jurisdictional fact in order to have a declaratory judgment  in the trust transfer minute which we think support the court's finding that it's not a legal life a state namely the fact that the trust allows trustees to encroach upon corpus for the health benefit of the beneficiaries and education that allows the trustees to sell the property those are all things which would be inconsistent instrument which says one of the assets of the trust is a principal residence which shall be used for the following people to live and again that's not really language of conveyance to meet it it's more instructions to the trustees that you're going to permit these people to live in the house for their life if they want to but they're section five the one of the trust instrument specifically aunts and uncles could live in the house for free and take care of them minor children the fact of trying to do you one contemplates that there could be a scenario where the doctors could be solved and you don't need to go outside of the four corners in order to reach that conclusion so to the extent church argues that five b somehow is inconsistent also generally under state law imposes obligations that you're not going to waste the property under trying to see a lot of life tenant normally has the duties to keep insurance on the property  taxes those kinds of things here the record before the court was the trust has always done that and that the beneficiaries never paid the taxes for the insurance or maintain the property it was all done at the expense of the trouble with the life estate characterization for the reasons stated but if that ends up being a determination so be it there are certainly things that are inconsistent with it being a traditional life estate how to respect her property has has suggest that you can have a life a state with conditions and maybe that's what we end up with here is a life of a life state with conditions attached to it margins be right the first time on appeal we submit that discretion should not be exercised in this case where the issue should have been raised in the complaint for starters and secondly the trial court should have been able to weigh in on it and we should have been able to respond to that in the court below but more importantly it's not a dry trust because the trust instrument recites one of the assets of this estate is the personal and present personal residence and on the record is clear that the real property owned by the trust contained several  improvements one was the personal residence there were two other residences one used as a rental house and the proof in the record is this rental house was always maintained and operated by the trust the trust collected the rental income from the rental house paid trust expenses with that income so that fact alone creates other assets which the trustees had duties towards which make it not a court in finding that there was an equitable life state especially found the nitrites it was not a dry trust because the trustees head ongoing duties to protect the trust from predators improvements into the trust to themselves as trustees so that was there it was an asset of trust and the question of whether or not we stoop lated to ownership there's a there is a question as to whether or not that transfer trust is is was not affected that is didn't affect a couple reasons one is there's a consideration issue for that too there's a lank there's a language issue the transferee is not the same the deed was never effective so therefore the blessing games on the property free and clear with all this other bells and whistles or number two what you did plead i'm a little not i'm just not sure why you didn't just put them all together one time we didn't we didn't do it that owns that cause of action and should be asserting it in another form outside of bankruptcy so it's it's it's an action that doesn't have to be she found that we could pursue it in the bankruptcy derivative leigh as a separate cause of action and we  but it's still operative law facts are completely different than they are here it did not involve any transfer by the blast or the blast games transferred their asset into the trust a trust which they are the trustee there the the beneficiary and the life tenant so in latin massengill actually the father i believe transfer owned the property and transferred it on himself and in conveyed a life interest in the property completely different and that's why i said earlier that this is a case of first impression with respect to the scope of what happened here what and i believe the quote this and that is that up if you remember from the very beginning the reason this trust was set up was to protect mr mrs blessing game helped them get there they said this trust up and now what they basically do you say set it up and they put the in the allowed themselves to do exactly what they were doing from the very beginning and that is living on the property or their lives and they control they control the powers they control the duties in their of themselves that includes who pays the taxes who maintains the house and they the basically telling each other what to do and that's why i argue that it's a passive dry trust there is no there is no clear encroachments that can happen as in massengill there could be encroached there could actually be the trustee was separate could actually go to pawn and had duties that could encroach upon the beneficial interest in the like t like a state interest here you don't have that here you have the same people that are dealing with the situation and for that reason we believe that this is just essentially a vehicle that was set up for one purpose and it was keep this president trustees were not the debtors right there might be different mike a different result but again i would i would caution that you need to look at the powers that that are cited by both parties in their briefs the five d the five g this it will get those powers all the powers that have nothing to do with the trust let me cite the lightest and s and perhaps i'm repeating myself but you contend that the basis for the denial of the turnover was the finding that this wasn't capital life at stake and that that in itself is sufficient to deny turnover yes once she found that it was an equitable life mistake it would come into the bankruptcy estate which means the bankruptcy it would not have the right to