The Law of Trusts

Browne C. Lewis
Associate Professor
Leon and Gloria Plevin Professor of Law & Director, Center for Health Law & Policy
Cleveland-Marshall College of Law, Cleveland State University

eLangdell® Press 2013

ii

About the Author
Professor Lewis graduated number one in her class with a degree in Political Science from
Grambling State University. Prior to attending law school, Professor Lewis received summer
fellowships to study at Carnegie-Mellon University, the Hubert H. Humphrey Institute at the
University of Minnesota and the John F. Kennedy School of Government at Harvard
University.
Professor Lewis started her professional career as a statistician and ADR trainer at the
Conflict and Change Center in Minneapolis, Minnesota. Then, she clerked for the
Honorable Daniel Wozniak, Chief Judge of the Minnesota Court of Appeals. Professor
Lewis practiced in the areas of environmental, elder, family, housing and probate law.
Professor Lewis spent most of her career working as a legal services attorney.
Professor Lewis is the Leon & Gloria Plevin Professor of Law and the Director of the
Center of Health Law & Policy at Cleveland-Marshall College of Law. Prior to joining the
faculty at Cleveland-Marshall, Professor Lewis was an associate professor at the University
of Detroit Mercy School of Law, a visiting professor at the University of Pittsburgh School
of Law, a summer visiting professor at Seattle University School of Law and a legal writing
instructor at Hamline University School of Law. Professor Lewis has also taught in the
American Bar Association CLEO Summer Institute.
Lewis is a member of the American Society of Law, Medicine & Ethics, the Health Care
Compliance Association, the Public Health Law Association and the American Health
Lawyers' Association. Professor Lewis is also a public member of the Board of the Joint
Commission and a member of Cleveland State University's Institutional Review Board
(IRB).
Professor Lewis writes in the areas of environmental, family and reproductive law. Her next
most recent article on surrogacy and maternity is forthcoming in the St. John’s Law Review.
Professor Lewis has recently completed a book on paternity and artificial insemination for
New York University Press. In 2010, Professor Lewis' casebook on the inheritance rights of
children was published by Carolina Academic Press.

iii

Notices
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About CALI eLangdell Press
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v

Table of Contents
About the Author ..................................................................................................... iii
Notices ...................................................................................................................... iv
About CALI eLangdell Press ..................................................................................... v
Preface ..................................................................................................................... viii
Chapter 1 - The Capacity to Create a Testamentary Trust........................................ 1
1.1. Parties Involved in a Trust Arrangement .................................................................... 2
1.2. Testamentary Capacity.................................................................................................... 4
Chapter 2 - Creation of a Private Trust .................................................................... 46
1.2 Intent to Create a Trust ................................................................................................ 46
2.2 Requirement of Trust Property ................................................................................... 53
Edwards v. Edwards ..................................................................................................................... 54
2.3 Necessity of Trust Beneficiaries .................................................................................. 63
Chapter 3 - Categories of Private Trusts.................................................................. 71
3.1. Private Expressed Trusts.............................................................................................. 71
3.2. Trusts Created By Operation of Law ......................................................................... 93
Chapter 4 - Discretionary and Support and the Rights of the Beneficiary’s
Creditors ..................................................................................................................122
4.1 Discretionary Trusts.................................................................................................... 125
4.2. Support Trust ............................................................................................................... 131
Chapter 5 - Spendthrift Trusts and Creditors .........................................................140
5.1 Expressed Spendthrift Trust...................................................................................... 141
5.2 Implied Spendthrift Trust .......................................................................................... 142
5.3 Creditors ....................................................................................................................... 149
Chapter 6 - Modification and Termination of Trusts .............................................174
6.1 Termination .................................................................................................................. 175
6.2 Claflin and Material Purpose ..................................................................................... 182
6.3 Deviation and Changed Circumstances ................................................................... 186
6.4 Removal of the Trustee .............................................................................................. 194
Chapter 7 - Creation and Modification of Charitable Trusts .................................201
7.1 Creation of the Charitable Trust ............................................................................... 201
7.2 Modification/Cy Pres ................................................................................................. 207
Chapter 8 - Supervision/Enforcement of Charitable Trusts ................................. 237
8.1 Donor Standing ........................................................................................................... 237
8.2 Beneficiary Standing.................................................................................................... 248
Chapter 9 - Treatment of Trust Property ............................................................... 254
9.1 The Duty to Collect and Protect Trust Property.................................................... 254
9.2 The Duty to Earmark Trust Property and to Not Comingle Trust Funds ........ 254
9.3 The Duty Not to Delegate ......................................................................................... 260
9.4 Duty of Prudence ........................................................................................................ 261
Chapter 10 - Duty of Loyalty .................................................................................. 282
Chapter 11 - Duty of Impartiality ........................................................................... 302
Chapter 12 - Duty to Account and Inform ............................................................. 323
12.1 To Account .................................................................................................................. 324
12.2 To Inform..................................................................................................................... 346
vi

12.3

The Trustee’s Liability ............................................................................................ 358

vii

Preface
Recently, the public waited patiently to find out the contents of Whitney Elizabeth
Houston’s will. People were entertained by her music and fascinated by her death. Thus, it is
no surprise that they were on the edge of their seats to discover how much money she had in
her estate. Inside Edition and other entertainment shows teased the public with previews
stating that they had received a copy of the will and planned to reveal its contents. The big
reveal fell short when the public realized that Houston had left everything to her daughter
using a testamentary trust. Wills are public documents, but trust instruments are not.
Therefore, the public will never know the specific provisions contained in the trust
document. Privacy is one of the reasons why more and more people are disposing of their
property using testamentary trust created in their wills. The reasons people establish trusts
are as varied as the lawyers who draft them. Traditionally, trusts were vehicles wealthy
people used to provide for their love ones. Currently, people from all economic classes
establish trusts. Thus, for students desiring to practice in the probate or elder law arena, it is
crucial that they have a basic understanding of the law of trusts.
The standard four-credit Wills & Trusts courses taught at most law schools do not
spend a sufficient amount of time on the law of trusts. Professors teaching such courses
have the daunting task of teaching intestacy, wills, non-probate transfers, estates, and trusts.
The semester is not long enough to give detail coverage to all of the important topics.
Consequently, professors have to decide what material to omit. Typically, the material on the
law of trusts is either omitted or severely shortened. One obvious reason for the treatment
of the trust information is the fact that the chapters on trusts are in the latter part of most
casebooks. It is difficult to predict the pace at which the material will be covered. Thus,
most professors have to adjust their reading assignments. Those adjustments usually require
the professors to cut assigned materials. Frequently, by the time the decision to reduce the
reading assignments needs to be made, the only significant material left to be covered are the
chapters on the law of trusts. Hence, that material is routinely omitted.
The use of testamentary trusts is becoming an important part of estate planning. As a
result, students who want to make a living as probate attorneys will need to know how trusts
fit into estate planning. In addition, bar examiners realize that it is important for students to
have a basic knowledge of trust law. That realization will result in bar examination questions
viii

that test that knowledge. The Law of Trusts is designed for use as a supplementary text for a
course on wills and trusts and the primary text in a seminar or course exploring the law of
trusts.
Since the settlor is dead when the testamentary trust becomes effective, the
testamentary trust is an irrevocable trust. The main focus of this book is on that type of
trust. However, the revocable inter vivos trusts will be briefly mentioned as it relates to the
testamentary trusts. Most of the legal issues surrounding the law of trusts come from
challenges to the creation and implementation of the trusts. In addition, even if the
testamentary trust is deemed to be valid, the actions of the trustee may lead to litigation. This
book is divided into two components to address the issues that arise in those two types of
litigation.
Part I explores the legal issues involved in the creation, modification and
implementation of private and charitable trusts. In order to have a trust invalidated, the
opponent must successfully challenge the capacity of the settlor or the procedure used to
create the trust. Part I contains a chapter that examines the level of mental ability a person
must have to create a trust. Other chapters in this part explains the steps that must be taken
to create, modify and terminate a trust and compares the various types of private trusts.
Part II discusses the administration of private and charitable trusts. In particular, the
part focuses upon the numerous duties of the trustee. Trusts are usually created to protect a
person who is vulnerable in some way. In a lot of respects, that person is at the mercy of the
trustee. Any decision that the trustee makes, good or bad, directly impacts the beneficiary.
In order to protect the beneficiary from the actions of the trustee, the law imposes a
fiduciary duty on the trustee. Chapters in Part II analyze the trustee’s duties and the remedies
available to the beneficiary in the event of the trustee’s breach of any of those duties. Part II
also includes a discussion of powers of appointments and their relevancy to trusts. This
discussion is necessary because bar examinations frequently contain questions dealing with
powers of appointment.
In additional to cases, the book contains problems, notes and questions. The cases
are designed to give the student a clear understanding of the law. The problems are included
to permit the student the opportunity to apply the law. The notes and questions are provided
so the student will think critically about the policies behind the law and the outcome of the
cases.
ix

Chapter 1 - The Capacity to Create a
Testamentary Trust
This chapter is divided into two parts. Part I introduces students to the parties that
are involved in the creation of a trust. Further, that part discusses the function of each of the
parties. Most trusts are testamentary in nature, so they are created as a part of a will. In order
for a testamentary trust to be valid, the testator must be legally capable of executing the trust.
Thus, in Part II of the chapter, I discuss the mental capacity the testator must possess to be
deemed competent to create a trust. In addition, the students will be introduced to the other
legal theories that may be used to attack the testator’s ability to establish a trust.
The primary purpose of a trust is to provide a source of income for a person who is
not capable of managing his or her resources. For instance, Barbara’s son, John has a
gambling problem. Barbara wants to make sure that John always has a place to live. If
Barbara gives John a house outright, he would probably lose it in a card game. Barbara
cannot give John the house and forbid him from transferring it because a direct restraint on
alienation is invalid. Thus, the court would ignore the condition and give John the house
without the restriction. Barbara can give John a life estate in the property, so that he would
have a place to live until he died. Granting John a life estate may not be a good idea for
several reasons. A legal life tenant has a duty to pay taxes and to maintain the property in
good repair. However, that duty is limited because the life tenant only has to fulfill that
obligation to the extent the income from the property is sufficient to cover those expenses.
It is unlikely that the house will produce any income, so John would not be obligated to pay
the property taxes or to keep the house in good repair. Even if John has such a duty, he is
probably too irresponsible to do so. Thus, giving John a life estate in the house may cause
more problems than it cures. Moreover, if the life tenant accrues debt, that person’s creditor
can legally seize the life estate and sell it. The creditor would probably realize very little from
the sale. But, the sell of the life estate will defeat Barbara’s purpose of providing John with a
place to live. Barbara’s best option is to put the house in trust for John. This means that
Barbara would give the legal title of the house to a third party. That person would be
responsible for maintaining the house for John. As the beneficiary of the trust, John would
have equitable title of the house. Since John would not have legal title, he would be unable to
1

sell or gamble away title to the house. Thus, the creation of a trust would enable Barbara to
achieve her objectives.

1.1.

Parties Involved in a Trust Arrangement
Usually, at least three parties are involved in the creation of a trust. Those parties are

the settlor/trustor, the trustee, and one or more beneficiaries. In cases involving
testamentary trusts, the settlor is referred to as the testator. Three different individuals do
not have to be involved in the transaction in order for a valid trust to be established. For
example, one person can serve as the settlor and the trustee. If a self-settled trust is involved,
it is possible for one person to serve in all three capacities. However, for the trust to be
valid, the trustee must owe equitable duties to someone other than herself. Thus, if the
settlor is also the trustee, she cannot be the only trust beneficiary. The settlor/trustor is the
person who creates the trust. Since she is the person who established the trust, Barbara is the
settlor or trustor.
The third party who manages the trust is the trustee. The trustee may be an
individual or a corporation. The settlor may select one trustee or several trustees to manage
the trust. The trustee may be appointed by the trust instrument or by the court. The person
or entity appointed as trustee must affirmatively accept the role. Once the trustee accepts the
appointment as trustee, the person can be released of the obligation only with the consent of
the beneficiaries or by a court order. The trustee is entitled to receive reasonable
compensation. A trust will not fail for lack of a trustee. If the trustee dies and no successor
trustee is named in the trust instrument, the court will appoint a successor in trustee.
However, if the trust instrument or other facts indicate that the settlor chose the person to
act as trustee because of the nature of their relationship, the court may conclude that the
settlor would not want the trust to continue without that trustee. As a result, the court may
dissolve the trust on the death or resignation of the trustee. If the trust is created as a part of
a will, the executor can also serve as the trustee.
The trust instrument must give the trustee some active duties to perform. A settlor
who gives the trustee no managerial responsibilities creates a dry trust. As a result, the court
will not recognize the creation of the trust, and the beneficiary will receive legal title to the
trust property. The following example illustrates a dry trust:

2

Example-Utilizing an instrument entitled “Trust For the Benefit of Roberto
and Marianna” Sophia placed one million dollars in an irrevocable trust for
her two children, Roberto and Marianna. She selected Vincent to serve as
trustee. Under the terms of the trust, $100,000 would be automatically paced
in the respective bank accounts of Roberto and Marianna each month.
Sophia never informed Vincent that he was to serve as trustee.
The above-referenced transaction did not result in a valid trust because the funds were
automatically dispensed to Roberto and Marianna. Vincent had no managerial duties. The
fact that the trust could function without Vincent’s knowledge further indicates that it was a
passive or dry trust. Consequently, the court would invalidate the trust and Roberto and
Marianna would have the right to split the million dollars and obtain it without restrictions.
The trustee has legal title to the trust property, and the beneficiary has equitable title.
Consequently, the trustee has the managerial authority over the property. Nevertheless, the
beneficiary is the one who suffers the consequences of the trustee’s good or bad decisions.
In the example put forth at the beginning of the chapter, the trustee has legal title to the
house and manages it for the benefit of John. Although the trustee has legal title to the
house, a personal creditor of the trustee has no recourse against the house. If the trustee
acquires an obligation on behalf of the trust, the creditor has recourse against the house, but
not against the trustee’s personal property.
Example 1-Keisha devises Purpleacre in trust to Robert to pay income to
Gary for life and the remainder to LaNitra on Gary’s death. Robert
accidentally hits April with his car. April files suit against Robert and receives
a judgment for $300,000. Although Robert has legal title to Purpleacre, April
cannot place a lien on Purpleacre to satisfy her judgment.
Example2-Gloria devises Blackacre in trust to Tamera to pay income to Ali
for life and the remainder to Patrick on Ali’s death. Tamera contracts with
Jason to make repairs to Blackacre. Jason submits a bill to Tamera for
$40,000. Tamera refuses to pay the bill. Jason can go to court and get a
mechanic’s lien on Blackacre. However, Jason cannot sue Tamera personally
for the debt.
The beneficiary of the trust is the person who receives the benefit of the trustee.
John is the beneficiary of the trust because it was created so he would have a place to live.
3

John has the equitable title to the house. John’s equitable interest entitles him to sue the
trustee personally for breach of trust. Moreover, equity gives John, as beneficiary, the right
to live in the house. Thus, if the trustee wrongfully disposes of the house, John can recover
the house unless it has come into the hands of a bona fide purchaser for value. In addition, if
the trustee disposes of the house and acquires other property with the proceeds of the sale,
John can enforce the trust on the newly obtained property.
Example-Ivana devises Brownacre in trust to Jessica for George for life and
the remainder to Katherine on George’s death. Jessica sells Brownacre to
Robin, a BFP, and buys Blueacre. George can sue to receive equitable title to
Blueacre.
In the above example, since Robin, a BFP, acquired legal title to Brownacre, George is
unable to maintain his equitable interest in the property. George’s remedy is to sue to get
the proceeds Jessica received from the sell of Brownacre or to obtain an equitable interest in
Blueacre.

1.2.

Testamentary Capacity
1.2.1. Mental Capacity
In order to create a testamentary trust the testator must be an adult and must be of

sound mind. A person who is 18 years of age or older is considered to be an adult. It is
difficult to determine if the person was “of sound mind.” The level of mental ability the
testator needs is really low. For instance, a person suffering from dementia or Alzheimer’s
disease may be competent to establish a testamentary trust as long as the person has lucid
moments. In order to have the necessary mental capacity to create a valid testamentary trust,
the testator must know the following: (1) the nature and extent of his property; (2) the
persons who are the natural objects of his bounty: (3) the disposition he is making; and (4)
the manner in which those facts relate so far as to form an orderly plan for the disposition of
his property.
To be found to be mentally competent, the testator does not have to have actual
knowledge of every piece of property that will be included in the trust. The testator also does
not have to be able to name every relative that may be a beneficiary of the trust.

In the Matter of the Estate of Gallavan, 89 P. 3d 521
Opinion by Judge CARPARELLI
4

In this formal testacy proceeding as to the estate of Donna L. Gallavan (decedent),
Joseph James Verce, Jr. (contestant), as personal representative of decedent’s sister, Carla M.
Verce, appeals the trial court’s judgment denying his petition for adjudication of intestacy.
Phillips R. McClendon, as decedent’s personal representative, and Shriners Hospitals for
Children, as a devisee, opposed the petition. We affirm.
Decedent was a protected person under conservatorship when she executed a will
that contained a testamentary trust for the benefit of her sister and brother during their lives.
Upon the death of both beneficiaries, the trust was to terminate, and trust proceeds were to
be distributed to Shriner’s Hospitals.
Decedent died in July 1999. Her personal representative submitted the will to
informal probate. Decedent’s sister survived decedent, but died in September 1999. Her
brother also survived her but died in October 2011 while the estate was in probate.
Contestant later filed the petition for adjudication of intestacy at issue here, alleging that
decedent lacked testamentary capacity to execute the will.
Contestant urges us to conclude that the will is invalid because decedent lacked
testamentary capacity. We perceive no basis for such a conclusion.
A person has testamentary capacity if he or she is an “individual eighteen or more
years of age who is of sound mind.” Section 15-11-501, C.R.S. 2003. The soundness of a
testator’s mind may be evaluated under either the Cunningham test or the insane delusion test.
See Breeden v. Stone, 992 P.2d 1167 (Colo. 2000); Cunningham v. Stender, 127 Colo. 293, 255 P.
2d 977 (1953).
Under the Cunningham test, a person has testamentary capacity when (1) she
understands the nature of her act; (2) she knows the extent of her property; (3) she
understands the proposed testamentary disposition; (4) she knows the natural objects of her
bounty; and (5) the will represents her wishes. Cunningham v. Stender, supra.
A.
Contestant contends that the judicial appointment of the conservator establishes that
decedent was “incapacitated” and, thus, that she lacked testamentary capacity. We are not
persuaded.
Contestant first points to the language of § 15-14-401(1)(b), C.R.S. 2003, which
allows appointment of a conservator for one who is unable to manage property and business
affairs because of inability “to effectively receive or evaluate information or both or to make
5

or communicate decisions” affecting her assets. He then points to the statutes that allow
appointment of a guardian for an “incapacitated persons,” defined in § 15-14-102(5), C.R.S.
2003, as, in pertinent part, one who is unable “to satisfy essential requirements for physical
health, safety, or self-care,” because of inability “to effectively receive or evaluate
information or both or make or communicate decisions.” He argues that the provisions
include similar phrases and that, as a result, the appointment of decedent’s conservator
establishes that decedent was “incapacitated” when she wrote the will. This argument is
contrary to the explicit language of the statutes.
When the meaning of a statute is plain and free from ambiguity, we may conclude
the legislature made a deliberate choice that was “calculated to obtain the result dictated by
the plain meaning of the words,” Hendricks v. People, 10 P.3d 1231, 1238 (Colo. 2000)
(quoting City & County of Denver v. Gallegos, 916 P.2d 509, 512 (Colo. 1996), and we give
effect to that meaning without resorting to rules of statutory interpretation. In re Estate of
DeWitt, 554 P.3d 849 (Colo. 2002).
Section 15-14-401 pertains to the appointment of a conservator to ensure that assets
a person needs for her own support, care, education, health, and welfare, or for that of
others who are entitled to her support, are not wasted or dissipated. The appointment of a
conservator does not include a finding of “incapacity.” In fact, when decedent wrote her
will, the version of § 15-14-408 (6) then in effect provided that “[a]n order …determining
that a basis for appointment of a conservator…exists, has no effect on the capacity of the
protected person.” Colo. Sess. Laws 1979, ch, 451, § 153-5-408(6) at 1626 (repealed effective
January 1, 20000. Similarly, under the current statute, § 15-14-409(4), C.R.S. 2003, states that
appointment of a conservator “is not a determination of incapacity.”
Thus, the statute explicitly states that findings that warrant appointment of a
conservator do not equate to a determination of testamentary incapacity.
Here, the trial court reached the same conclusion based on the holding in In re Estate
of McCrone, 106 Colo. 69, 101 P.2d 25 (1940), and contestant argues that reliance was error.
However, contestant also argues that the court should have applied the current statutes.
Because we conclude that the court’s ruling was correct under those statutes, we need not
address contestant’s argument concerning McCrone. See People v. Gresl, 89 P.3d 499, 2003 WL
23095411 (Colo. App. No. 00CA1170, Dec. 31, 2003).
B.
6

Contestant also asserts that the trial court erred when it held that decedent had
testamentary capacity. We disagree.
Findings of fact will not be set aside unless they are clearly erroneous. C.R.C.P. 52;
Mesa County Valley Sch. Dist. No. 51 v. Kelsey, 8 P.3d 1200 (Colo. 2000); In re Estate of Heyn, 47
P.3d 724 (Colo. App. 2002); In re Estate of Perry, 33 P.3d 1235 (Colo. App. 2001).
Here, the trial court applied and made findings appropriate to the Cunningham and
insane delusion tests, and there is substantial evidence in the record to support the court’s
findings. We perceive no basis for overturning this ruling.
C.
Contestant also argues that the will or, in the alternative, the trust is invalid because a
protected person cannot execute a valid will that includes a trust. Again, we are not
persuaded.
When a court appoints a conservator, the protected person’s assets are vested in the
conservator. As a result, the protected person cannot transfer assets to others, including an
inter vivos trust. See § 15-14-421, § 15-14-422, C.R.S. 2003. Here, however, decedent had
testamentary capacity and, as a result, could bequeath assets to others, create a testamentary
trust, and bequeath some or all of her estate to such a trust. Because she did not transfer any
assets during her lifetime, the conservatorship was not implicated. Therefore, we conclude
that, even if appointment of a conservator prevents a protected person from creating an
inter vivos trust, it does not prevent a protected person who has testamentary capacity from
creating a testamentary trust.
The judgment is affirmed.
Notes, Questions and Problems
1. In Gallavan, the contestant appeared to want the court to establish a presumption of lack
of mental capacity based upon the appointment of a conservator. If the court had ruled in
favor of the contestant, the decision might have negatively impacted persons with
disabilities. For instance, a mentally disabled person who receives SSI has to have a
representative payee. Should that status be enough for the person to be presumed mentally
incompetent to execute a will or a testamentary trust? What about persons who have been
diagnosed with severe dementia?
2. The will in Gallavan was submitted to informal probate. An increasing number of states
have statutes permitting informal probate. Informal probate allows the personal
7

representation to administer the decedent’s estate without probate court supervision. The
estate is closed when the representative files a sworn statement certifying that the decedent’s
debts, expenses, and taxes have been paid and distributions have been made to the persons
entitled to them.
3. In Gallavan, the Court indicates that a person who is under a conservatorship may not
have the capacity to establish an inter vivos trust. Nonetheless, that same person may be
legally capable of creating a testamentary trust. What are some arguments that support the
difference in treatment?
4. What are the pros and cons of requiring a testator to be of “sound mind”? Does the
Gallavan case give any insight into determining when a person is of sound mind?
5. Problems
In which of the following cases may the testator lack mental capacity to execute a will or
trust?
a) Sally had two daughters, Grace and Amanda. Sally’s will contained the following language
“I leave 80% of my estate in trust for my daughter Grace and the remaining 20% in trust for
my step-daughter, Amanda." Both Grace and Amanda were Sally’s biological children.
b) Frederick executed a will stating “I leave my entire estate to my three children, Darlene,
Mason and Paul.” Frederick only had two children, Darlene and Mason. Paul was Frederick’s
pet monkey.
c) Joshua inherited his family’s farm located at 1120 Gates Mill Road. In 1997, the city seized
the farm because Joshua failed to pay the property taxes. Joshua claimed that he had receipts
showing that he had paid the taxes. Thus, he filed suit to regained ownership of the farm.
Joshua lost his case, but vowed to never stop fighting. In 2009, Joshua executed a will
containing the following provision, “I leave the farm located at 1120 Gates Mill Road to my
son, Theodore.”
d) Elvira was the victim of a scam in which she purchased the Golden Gate Bridge. In her
will Elvira stated, “I leave the Golden Gate Bridge to my son, Huey.

8

1.2.2. Insane Delusion
A person may be mentally competent to create a testamentary trust. Nonetheless, the
testamentary trust may be invalid because it was the product of an insane delusion. In order
to convince a court to invalidate a testamentary trust based on the testator’s insane delusion,
the contestant must prove (1) the testator was suffering from a delusion that was insane and
(2) the trust was a consequence of the insane delusion.
An insane delusion that may prevent a person from having the capacity to execute a
testamentary trust is a false belief based upon incidents that exist solely in the imagination of
the person suffering from the delusion. The “insane’ in insane delusion does not refer to a
medical condition. Thus, the testimony of a psychologist or psychiatrist is not necessary to
prove it. For instance, one court has stated, “An ‘insane delusion’ or ‘monomania insanity’ is
not a general defect of the mind, for the purposes of determining whether the delusion
operated to invalidate a will; it is an insanity directed to something specific, that is, a
particular person or thing, and the testator can be laboring under the influence of an insane
delusion while otherwise acting or appearing competent.” Dougherty v. Rubenstein, 914 A.2d
184 (Md. App. 2007). A delusion is insane even if there is some factual basis for the belief if
a rational person in the testator’s position could not have drawn the conclusion the testator
reached. See Restatement (Third) of Property: Wills and Other Donative Transfers § 8.1, cmt.
s. (2003). The testator’s insane delusion must impact the manner in which she distributes her
property. If an insane delusion is shown, but the delusion did not affect the dispositions, the
will and the testamentary trust stand.
Consider the following example. After Maxwell’s wife died in child birth, he believed
that the baby girl, Amanda, was the devil incarnate, so he sent her away to boarding school.
Maxwell’s priest and friends tried to convince him that Amanda was a good, well-behaved
child. However, Maxwell held on to his belief that Amanda was evil. Maxwell was delusion
with regards to his views about Amanda. That delusion had the potential to impair his
capacity to create a testamentary trust. If Maxwell told the lawyer creating his testamentary
trust to exclude Amanda as a beneficiary of the trust because Maxwell thought Amanda
would use his property to worship the devil, the one Maxwell regarded as Amanda’s true
father, a court would probably decide that Maxwell’s testamentary trust was a product of an
insane delusion. Thus, it would be invalidated because he lacked the necessary testamentary
9

capacity to establish a trust. However, if Maxwell told the lawyer to exclude Amanda as a
beneficiary of the trust because Maxwell had already provide sufficient lifetime support for
Amanda, the court would probably conclude that Maxwell’s delusion did not influence his
decision to exclude Amanda as a beneficiary of the trust. Therefore, the trust would be
declared valid.
A Mistake vs. An Insane Delusion
An insane delusion is different from a mistake. An insane delusion is a belief that is
not susceptible to correction by showing the testator evidence indicating that his or her
belief is false. A mistake is a belief that is susceptible to correction if the testator is presented
with the truth. Courts usually do not reform or invalidate a testamentary trust because of a
mistake, but courts do invalidate entire trusts or their provisions that result from an insane
delusion.
Insane Delusion: Nicholas believes that his daughter, Taylor, is dead.
Taylor comes to Nicholas’ house to show him that she is still alive.
Nicholas believes that someone is impersonating Taylor, so he intentionally
excludes her as a beneficiary of his testamentary trust.
Mistake: Nicholas believes that his daughter, Taylor, is dead. Taylor is alive,
but
Nicholas does not discover that fact. Nicholas intentionally excludes Taylor
has a
beneficiary of his testamentary trust.
Taylor will be able to successfully challenge the validity of the trust created as a result
of the insane delusion. However, the trust created as a result of the mistake will be validated.

In re Estate of Squire, 6 P.3d 1060
CARL B. JONES, Chief Judge:
This will contest involves a “pour over” will and a revocable trust executed by Betty
Louise Squire six years before her death. The decedent had never married and was childless.
The contestants to this will and trust are the decedent's first cousins. In 1990, the decedent
executed a living trust naming WestStar Bank of Bartlesville, Oklahoma (Bank) as Trustee
and leaving the bulk of the decedent's residuary estate to three charities: the Washington
County SPCA, the American Diabetes Association and Washington County Elder Care, Inc.
10

The decedent also executed a “pour over” will which provided that any assets remaining in
the decedent's name at death would pass to the Trust for administration and distribution.
The first cousins filed a petition for letters of administration and determination of
heirs asserting that the decedent had died intestate. WestStar filed its objection to the
petition attacking the will executed by the decedent. The cousins contested the will and
sought to set aside the Trust, claiming both documents to be the products of undue
influence and an insane delusion. After a two-day trial, the trial court denied the cousins'
petition contesting the will and trust. The cousins appeal.
Issues presented on review are: 1 whether the decedent had testamentary capacity at
the time she executed the will and trust; 2) whether the trust and will were a product of
undue influence; and 3) whether the decedent was acting under an insane delusion at the
time she executed the will and trust. Probate proceedings are of equitable cognizance. While
the appellate court will study the whole record and weigh the evidence, the trial court's
findings will not be disturbed on review unless they are clearly against the weight of the
evidence or some governing principle of law. When a will is offered for probate, the singular
concern of the court is: (a) whether the will has been executed with the requisite statutory
formalities, (b) whether the testatrix was competent to make a will at the time it was made,
and (c) whether it was the product of undue influence, fraud or duress. The significance of
this entire process is to ascertain and effectuate the decedent's intentions regarding the
disposition of her property. Matter of the Estate of Sneed, 953 P.2d 1111, 1151 (Ok., 1998).
The cousins assert that the decedent lacked testamentary capacity at the time she
executed her will and trust. Relying on In re Estate of Lacy, 431 P.2d 366 (Ok. 1967) the
cousins assert that the decedent made an unnatural disposition as she failed to mention the
“objects of her bounty” which in this case would have been her cousins. Although Lacy does
not hold that this alone is conclusive of no testamentary capacity, the cousins contend that
coupled with this failure is the medical evidence introduced that the decedent was a mentally
ill person and had been for many years.
Testamentary capacity exists when a person has, in a general way, the faculty to
appreciate the character and extent of the devised property, comprehends the nature of the
relationship between themselves and the objects of their bounty and perceives the nature
and effect of the testamentary act. Whether one possesses testamentary capacity is a question
of fact. When a person contests a testator's soundness of mind, the burden of persuasion
11

rests upon that person. When a court ascertains a decedent's testamentary capacity, it is
appropriate for it to consider evidence of the testator's mental capacity, appearance, conduct,
habits and conversation both before and after the will is executed. In re Estate of Lacy, supra.
The record reflects that the decedent remained in her family home until
approximately six months prior to her death. One of the reasons the decedent was able to
stay in her home was because pursuant to the trust the Bank paid the decedent's bills and
arranged for caretakers. She suffered from multiple health problems including diabetes and
partial blindness. In addition, the decedent was treated for anxiety and depression by a
psychiatrist in Bartlesville. In the psychiatrist's notes, references were made to a “falling out”
with the decedent's cousins for various reasons during the late '80s. Approximately one
month before the execution of the will and trust, the decedent was hospitalized for an
insulin reaction and was confused. She was discharged to a geriatrics center until she could
return to her home. At the time she executed the will and trust, October 30, 1990, she was
still at the geriatrics center. The medical records reflect from October 16, 1990 to November
17, 1990, that the decedent was alert, oriented and frequently went out of the building for
social activities. The record is devoid of anyone testifying that the decedent did not know
her relatives, did not understand her property, or in any way appeared incompetent. After a
review of the record, we find that the trial court's decision that Betty Louise Squire was
possessed of testamentary capacity at the time she executed her will and trust is not clearly
against the weight of the evidence.
Relying on In re Estate of Maheras, P.2d 268 (Ok., 1995) and In re Estate of Gerard, 911
P.2d 266 (Ok., 1995) the cousins assert that they were entitled to a presumption of undue
influence. They contend that the decedent did not have independent advice and that the
trust officer from WestStar used her influence over the decedent to benefit the bank. We do
not agree. The Oklahoma Supreme Court held in these two cases that a two-prong test must
be used to decide whether undue influence has tainted a will. First, there must be a
relationship which would induce a reasonably prudent person to repose confidence and trust
in another. Second, the stronger party in the relationship must have assisted in the
preparation of the testamentary instrument. It is undisputed that a confidential relationship
existed between the trust officer with WestStar and the decedent. However, the
distinguishing factor here is that the decedent approached WestStar and requested assistance
in setting up the appropriate documents to manage her affairs. In fact, the decedent brought
12

an unsigned will document dated 1987 to WestStar to assist in drafting the trust and will.
This unsigned document provided that she wanted to leave the majority of her estate to the
three charities. The trust officer opined at trial that the decedent's previous attorney had
drafted the unsigned will. No contradictory evidence was presented on the authorship of this
unsigned will. Further, the trust officer testified that the decedent provided all instructions
regarding the disposition of her assets. As previously stated, this Court will not disturb the
factual findings of a trial court unless they are clearly contrary to the weight of the evidence.
We find that the trial court correctly found that the will and trust were not the product of
undue influence.
Finally, the cousins assert that the decedent suffered from an insane delusion which
materially affected the execution of the will and trust. The cousins contend that the decedent
believed that people were stealing from her and that her cousins were after her money. An
insane delusion connotes a belief in things which do not exist and which no rational mind
would believe to exist. Winn v. Dolezal, 355 P.2d 859 (Ok., 1960). Such a delusion is a false
belief, which would be incredible in the same circumstances to the victim if she were of
sound mind and from which she cannot be dissuaded by any evidence or argument. We
must determine whether the decedent's condition at the time of the execution of the will and
trust was such to show that the disposition which she made was caused by a delusion and
but for the delusion the disposition of the property would have been otherwise. This
delusion, if it existed, must have existed at the time of the execution of the will. Lynn v. Ada
Lodge No. 146, 398 P.2d 491, 496 (Ok., 1965)
The cousins emphasize that until 1983 the decedent had a very good relationship
with her cousins. After the decedent and one of her cousins took a trip together, the
decedent began to withdraw from this relative. The discord between this cousin arose from a
misunderstanding over the transfer of the decedent's funds shortly before the 1983 trip. The
decedent discussed this with her psychiatrist who noted that rifts between relatives occur all
the time. No notation was found in his notes referring to an insane delusion. None of her
doctors ever noted on her charts that she suffered insane delusions. In fact, one doctor in
1987 specifically stated that while the patient was depressed and anxious, she did not suffer
from hallucinations or insane delusions. We find that the trial court correctly found that the
decedent was not suffering from an insane delusion at the time she executed her will and
trust. Accordingly, the trial court is affirmed.
13

AFFIRMED
Notes, Questions and Problems
1. In Squire, the Court stated that the testator’s behavior before and after the execution of the
will was relevant to her mental capacity. Why should behavior after the execution of the will
matter?
2. A pour over will is used in conjunction with an inter vivos trust to avoid probate. The
settlor creates the trust during her lifetime and places very little assets in it. Then, she
executes a pour over will that bequests money or property to the existing trust. When the
testator dies, the money or property from the will pours over into the trust.
3. If a person executes a will when he is young and healthy, it is difficult for the court to set
it aside because of an insane delusion. Prior to committing suicide, Roger Bauer wrote a
letter to his girlfriend containing the following statement, “My primary reason for doing this
is a near complete lack of family love. It is something that will always be missing from my
life. I will never be able to compensate for it no matter what.” In the last sentence of the
letter Bauer left everything to his girlfriend who submitted the letter for probate as a
holographic will. Bauer’s sister contested the will claiming that his belief that he lacked the
love of his family was an insane delusion. The Court found that Bauer had not suffered from
an insane delusion. Bauer v. Estate of Bauer, 687 S.W.2d 410. If the Court concluded that
Bauer was suffering from a delusion with respect to his family, would that be sufficient to
invalidate the will under the doctrine of insane delusion.
3. Problems
In which of the following cases is the court likely to invalidate the will based upon an insane
delusion?
a) Mary heard voices telling her that her son, Billy, was poisoning her.

Thus, Mary

disinherited Billy and left all of her money to charity.
b) Simon thought that his daughter, Maude, was stealing from him. When Simon confronted
Maude, she denied the accusations. Simon could not find evidence of Maude’s stealing, but
he believed that she was a thief because she had red hair. Simon established a trust on behalf
of his two other children and excluded Maude as a beneficiary. After Simon died, his
executor discovered that Maude had been stealing from Simon.
c) Craig and Lucy were married for over 50 years. When Craig suspected that she was having
an affair, Craig told his friends that he planned to disinherit her. Craig claimed that Lucy was
14

slipping men down the chimney and having sex with them in the attic. Lucy was injured in a
car accident and received a large case settlement. Then, Craig told his friends that Lucy did
not need his money, so he was not going to leave her any thing. Craig also stated that if Lucy
was broke he would not leave her a penny of his money to spend on her men.
d) Rufus had black hair and brown eyes. Rufus married Shelley, who also had black hair and
brown eyes. When Shelley gave birth to a little boy, Danny, who had blonde hair and blue
eyes, Rufus was convinced that he was not the father of the child. In order to convince
Rufus that Danny was his son, Shelley went on a talk show and had a DNA test conducted.
The DNA test proved that Rufus was Danny’s father. However, Rufus believed that the
DNA test had been rigged to increase the show’s television ratings. Shelley was never able to
convince Rufus that Danny was his child, so the couple divorced. Rufus executed a will
stating, “Since I am childless, I leave my entire estate to the Red Cross.”

1.2.3. Undue Influence
The requirements that the testator is mentally competent and not suffering from an
insane delusion are designed to insure that the testator’s will or trust is a product of a sound
mind. However, a person who has a sound mind is still susceptible to being influenced by
other people. Estate planning is often a family affair. Thus, persons who stand to benefit
from the testator’s actions may intentionally or inadvertently influence the manner in which
the testator disposes of her property. The law permits the testator to be influenced by the
actions and opinions of others. Nonetheless, if that influence causes the testator to make a
disposition that the testator would not otherwise have made, the law considers that influence
to be undue. Courts will strike the terms of a testamentary trust that results from undue
influence, and allow the remaining terms to stand if they can be reasonably separated from
the invalid terms without destroying the testator’s intent or interfering with the testamentary
plan.
The test for undue influence is whether someone exercised so much control over the
testator’s mind that the person overcame the testator’s free will and caused the testator to do
what he would not have otherwise done but for the person’s influence. The person
contesting the testamentary trust has the burden of proving the following: (1) that the
testator was susceptible to undue influence or domination by another; (2) that the persons
alleged to have committed the undue influence had the opportunity to exercise it; (3) that
15

such person had a disposition to influence for the purpose of personal benefit; and (4) that
the provisions of the trust appear to be unnatural and the result of such influence. Undue
influence is often difficult to prove. In some cases, the burden of proof shifts to the
proponent of the testamentary trust. Once the burden shifts, that persons must show a lack
of undue influence. The factors that cause the burden of proof to shift include (1) the
existence of a confidential relationship; (2) a testator with a weakened intellect; and (3) a
trust that gives the person with the confidential relationship the bulk of the estate.
Confidential relationships like attorney-client and caretaker-patient are usually enough to
shift the burden of proof. In fact, many courts have held that, if an attorney, who is not
related to the testator, benefits from a testamentary trust, a presumption of undue influence
occurs. The attorney must present clear and convincing evidence to rebut the presumption.

In re Estate of Johnson, 340 S.W.3d 769
CATHERINE STONE, Chief Justice.
Appellants' motion for rehearing is denied. This court's opinion and judgment dated
December 1, 2010 are withdrawn, and this opinion and judgment are substituted. Our prior
opinion contained an incorrect reference to Laura Johnson serving as co-trustee of a
foundation as opposed to Laura Johnson serving as co-trustee of a management trust. We
substitute this opinion to delete the erroneous factual reference which does not affect this
court's prior analysis.
This appeal arises from a probate proceeding in which a jury found Belton Kleberg
Johnson (“B”) executed certain wills and trusts as a result of undue influence. The trial court
entered judgment on the verdict, denying probate of certain wills and admitting B's 1997 will
to probate. Additionally, the judgment invalidated certain trust documents. On appeal, the
independent executor of B's estate, B's widow, and a co-trustee of a trust created by B,
challenge the sufficiency of the evidence to support the jury's finding of undue influence. We
affirm the trial court's judgment.
BACKGROUND
A. The Family Members
B was a descendent of famed King Ranch heritage. He and his first wife, Patsy,
whom he divorced in 1987, were the parents of three children: Cecilia McMurrey (“Ceci”),
Sarah Pitt (“Sarah”), and Kley Johnson (“Kley”). Kley, who died in a car accident in 1991,
was married to Cecilia Hager (“Hager”). Alice Truehart Johnson and Henry Kleberg
16

Johnson are Kley and Cecilia's children. Sarah married Steven Pitt, and Sarah Spohn Kleberg
Pitt, Stephen McCarthy Pitt, Jr., and Allegra Elizabeth McCarthy Pitt are their children. Ceci
married Mark McMurrey, and Harry Bennett McMurrey, Belton Kleberg McMurrey, and
Estella Lewis McMurrey are their children.
Lynne Johnson was B's second wife. They were married in February of 1991, and
Lynne died of cancer in January of 1994.
Laura Johnson was B's third wife. B met Laura in Hong Kong in January of 1994
within days after Lynne's death. At the time, Laura was still married to her first husband,
who also was her business partner; however, they had been separated for several years.
Laura's divorce from her first husband was final in January or April of 1996, and she married
B on November 8, 1996.
B. The Estate Planning Documents
Over the course of at least four decades, B engaged in extensive estate planning
activity with the aid of various professionals. The following individuals were involved at
varying times in B's estate planning: (1) Ed Copley—an estate planning attorney B hired in
1991; (2) Robert Phelps—a generational planning specialist with J.P. Morgan who was also
an attorney; (3) Stacy Eastland—another estate planning attorney B hired in 1997; and (4)
Peter Milton—a loan officer with J.P. Morgan who subsequently became an investment
advisor for B's foundation.
Following B's death in 2001, Copley obtained an order admitting to probate B's 1999
will and 2000 Codicil and was named as the independent executor of B's estate. B's children
and grandchildren challenged that order in the suit giving rise to this appeal. A review of B's
estate planning documents for the decade preceding his death is helpful to understanding the
parties' claims.
B's 1991 will created a life estate for his second wife, Lynne, with the remainder
going into trust for B's grandchildren. The 1991 will list three specific charities as contingent
beneficiaries in the event all of B's descendants predeceased him. B's 1993 will was similar to
his 1991 will; however, a subsequent codicil changed the remainder beneficiaries from B's
grandchildren to his children. B's 1995 will left $1 million net of tax in trust to each
grandchild with the remainder going to five specific charities.
B's 1997 will left his estate to a 1997 Management Trust. In the 1997 Management
Trust, $1,000,000 net of tax was left in trust for each grandchild. The remainder of the estate
17

was to be held in trust for Laura for her life. Laura had a power of appointment and could
leave up to one-half of the remaining estate to any or all of B's descendants, and the other
one-half of the remaining estate (or the entire remainder if Laura did not exercise the power
of appointment) was to be distributed to the same five specific charities listed in the 1995
will.
In 1989, B created Johnson Properties. B was the general partner of Johnson
Properties, and the trusts of B's children were limited partners. Johnson Properties owned a
limited partnership interest in SA–2000, which owned the Hyatt Hotel on the San Antonio
River Walk. Upon the dissolution of Johnson Properties in 1998, B and the trusts
individually owned the partnership interests in SA–2000. B formed a new family limited
partnership, BKJ Interests, to which he transferred his King Ranch royalties and the interest
in SA–2000 which he formerly owned through Johnson Properties. The record is replete
with evidence that the effect of the dissolution of Johnson Properties on B's estate plan was
intentionally kept secret from Ceci and Sarah until B's death.
Around the same time as the Johnson Properties dissolution, B created the 1998
Family Trust, which eventually obtained a portion of B's interest in BKJ Interests. B's 1998
will left his estate to a 1998 Management Trust. In the 1998 Management Trust, an aggregate
of $7 million was left in trust for B's grandchildren; however, that amount was offset by the
fair market value of the assets held in the 1998 Family Trust. The remainder of the estate
was held in trust for Laura for her life. Laura then had a power of appointment similar to the
power contained in the 1997 will, except the remaining one-half (or the entire remainder if
Laura did not exercise the power of appointment) was distributed to the Belton Kleberg
Johnson Foundation. Although the trust lists some organizations which B desired to be the
primary focus of distributions from the foundation, the trustee of the foundation ultimately
controlled the distributions.
B's 1999 will left his estate to the 1998 Management Trust as amended and restated
in 1999. The 1998 Management Trust as restated no longer mentioned a distribution in trust
for the grandchildren. The entire estate is instead held in trust for Laura for her life, and the
provisions upon her death regarding the remainder were unchanged from the 1998
Management Trust.
C. The Attorneys and the Claims
The Lawter Firm represented the following plaintiffs during the course of the
18

underlying controversy: (1) B's daughter Sarah, individually and as a beneficiary of her 1962,
1970, 1976, and 1990 trusts; (2) B's daughter Ceci, individually and as a beneficiary under her
1962, 1970, 1976, and 1996 trusts; (3) B's daughter-in-law Hager, individually, as successorin-interest to Kley, as executrix of Kley's estate, as co-trustee of Kley's 1970 trust, and as
beneficiary of the trusts created under Kley's will; (4) B's granddaughter Alice, individually
and as next friend for her brother Henry; (5) Houston Trust Co., as trustee of the 1962
trusts of Sarah and Ceci and their descendants, as co-trustee of the 1970 trusts for Sarah and
Ceci and their descendants, and as trustee of the 1990 and 1996 management trusts; and (6)
Carper Capt, as co-trustee of the 1970 trust for Hager and Kley's descendants. The Hartnett
Firm represented all of B's grandchildren with the exception of Alice and Henry.
Each of the individual plaintiffs and all of the trustee plaintiffs sued B for breach of
his fiduciary duties in relation to the children's trusts and the dissolution of Johnson
Properties. Each of the individual plaintiffs also sued B's widow Laura for tortiously
interfering with their inheritance rights and contested the validity of the will and codicil
admitted to probate. They further sought to probate several alternative wills and codicils. B's
grandchildren also sued J.P. Morgan for breaching its fiduciary duties arising from the 1998
Family Trust. Finally, Sarah and Ceci contested the management trusts. All of the plaintiffs
will collectively be referred to herein as “Appellees.”
UNDUE INFLUENCE—SUFFICIENCY OF THE EVIDENCE
A. Law on Undue Influence
“[U]ndue influence implies the existence of a testamentary capacity subjected to and
controlled by a dominant influence or power.” Rothermel v. Duncan, 369 S.W.2d 917, 922
(Texas 1963). Rothermel [is] the seminal Texas will contest case” in which the Texas Supreme
Court established a three-part test to determine whether undue influence exists. Estate of
Davis v. Cook, 9 S.W. 3d. 288, 292 (Tex. App.-San Antonio 1999, no pet). To prevail on an
undue influence claim, the contestant must prove: (1) the existence and exertion of an
influence; (2) the effective operation of such influence so as to subvert or overpower the
mind of the testator at the time of the execution of the testament; and (3) the execution of a
testament which the maker thereof would not have executed but for such influence.
Rothermel, 369 S.W. 2d at 922; Estate of Davis, 9 S.W. 3d at 292-93. The burden of proving
undue influence is upon the party contesting its execution. Rothermel, 369 S.W.2d at 922;
Estate of Davis, 9 S.W. 3d.at 293. It is, therefore, necessary for the contestant to introduce
19

some tangible and satisfactory proof of the existence of each of the three elements. Rothermel,
369 S.W.2d at 922; Estate of Davis, 9 S.W. 3d at 293.
Not every influence exerted by a person on the will of another is undue. Rothermel,
369 S.W.2d at 922; Estate of Davis, 9 S.W. 3d.at 293. Influence is not undue unless the free
agency of the testator was destroyed and a testament produced that expresses the will of the
one exerting the influence. Rothermel, 369 S.W.2d at 922; Estate of Davis, 9 S.W. 3d.at 293.
One may request or even entreat another to execute a favorable dispositive instrument, but
unless the entreaties are shown to be so excessive as to subvert the will of the maker, they
will not taint the validity of the instrument with undue influence. Rothermel, 369 S.W.2d at
922. “Influence that was or became undue may take the nature of, but is not limited to,
force, intimidation, duress, excessive importunity[,] or deception used in an effort to
overcome or subvert the will of the maker of the testament and induce the execution thereof
contrary to his will.” Id.
The exertion of undue influence is usually a subtle thing, and by its very nature
usually involves an extended course of dealings and circumstances. Id. Undue influence may
be shown by direct or circumstantial evidence, but will usually be established by the latter.
Id.; Estate of Davis, 9 S.W. 3d.at 293 “[A]ll of the circumstances shown or established by the
evidence should be considered; and even though none of the circumstances standing alone
would be sufficient to show the elements of undue influence, if when considered together
they produce a reasonable belief that an influence was exerted that subverted or
overpowered the mind of the testator and resulted in the execution of the testament in
controversy, the evidence is sufficient to sustain such conclusion.” Rothermel, 369 S.W.2d at
922. Circumstances relied on as establishing the elements of undue influence must be of a
reasonably satisfactory and convincing character, and they must not be equally consistent
with the absence of the exercise of such influence. Id.; Estate of Davis, 9 S.W. 3d.at 293. “This
is so because a solemn testament executed under the formalities required by law by one
mentally capable of executing it should not be set aside upon a bare suspicion of
wrongdoing.” Rothermel, 369 S.W.2d at 922-23.
B. Evidence on Elements of Undue Influence
Although the parties cite cases in support of their respective positions, no two cases
involving undue influence are alike, and each case must stand or fall depending upon the
sufficiency of the facts proven. Id at 921. Attempting to analyze each item of evidence relied
20

upon by the parties would unnecessarily lengthen an opinion. Id. That is especially true in
this case which took four months to try and resulted in a voluminous record. Although we
do not attempt to summarize all of the evidence, we discuss at length some of the evidence
supporting the jury's finding as to each of the three elements necessary to prove undue
influence.
1. Overpowering the Testator's Mind
Where there is competent evidence of the existence and exercise of undue influence,
the issue as to whether undue influence was effectually exercised necessarily turns the inquiry
and directs it to the state of the testator's mind at the time of the execution of the testament,
since the question as to whether free agency is overcome by its very nature comprehends
such an investigation. Id at 923. “The establishment of the subversion or overpowering of
the will of the testator is generally based upon an inquiry as to the testator's mental or
physical incapacity to resist or the susceptibility of the testator's mind to the type and extent
of the influence exerted.” Id. “Words and acts of the testator may bear upon his mental
state.” Id. “Likewise, weakness of mind and body, whether produced by infirmities of age or
by disease or otherwise, may be considered as a material circumstance in establishing this
element of undue influence.” Id.
Conflicting expert testimony was presented regarding B's susceptibility to undue
influence. The evidence established that B was an alcoholic, and psychological and medical
tests showed that the alcohol had an adverse effect on his mental state. Although B received
both in-patient and out-patient alcohol rehabilitation services several times before his
marriage to Laura, the record contains no evidence that Laura made any effort to stop B's
drinking, which he admitted was on-going when he was hospitalized in 2000 and diagnosed
with pancreatic cancer.
Dr. Christopher Ticknor, a psychiatrist called by the Appellees, met B while Dr.
Ticknor was treating B's son, Kley. Ticknor described the medical tests performed on B in
1990 during one of his rehabilitation efforts. The tests showed organic brain
syndrome/memory dysfunction. Hospital records from 1997 showed a history of continued
drinking, including a two-week binge just a few days before the hospitalization. The 2000
medical records also included evidence of an on-going history of drinking. Although the
psychiatrist who saw B in 2000 did not recommend in-patient treatment, his notes reflect a
concern about B's drinking, recommending B stop drinking or seek treatment.
21

Richard Coons, another psychiatrist called by the Appellees, testified that B feared
abandonment, having lost his mother while he was young. Dr. Coons opined that B feared
abandonment by Laura. Dr. Coons further opined that B's permanent cognitive defects,
continued drinking, and personality features caused him to be vulnerable to undue influence.
Finally, William Dailey, a neuropsychologist called by the Appellees, testified that the
1990 tests showed B had significant memory deficit. Dailey opined that the testing was valid
and that the decline in B's cognitive function increased his vulnerability to undue influence.
Richard Fulbright, a clinical neuropsychologist called by the Appellants, did not
provide an opinion on undue influence. Edgar Nace, a psychiatrist called to testify by the
Appellants, testified that B was not unduly influenced. Nace's testimony, however, did not
differentiate between an expert medical opinion regarding undue influence and a jury's
finding of undue influence. An expert's medical opinion is based on a person's mental
susceptibility to undue influence independent of the facts, while a jury's finding of undue
influence takes into consideration the actual facts of the case in determining whether a
person was, in fact, unduly influenced. Moreover, at his deposition, Nace was asked
hypothetically whether Laura could have unduly influenced B by putting a gun to his head.
In his deposition, Nace responded that he was unsure; however, at trial, Nace testified the
gun example would be an example of undue influence based on common sense. The jury
could consider these conflicts in Nace's testimony in weighing his credibility.
The jury was required to weigh the foregoing expert testimony and determine the
credibility of the testimony based on the experts' challenges to each others' opinions and
extensive cross-examination challenging each expert's opinion. See City of Keller, 168 S.W. 3d
at 819 (jurors may choose to believe one witness and not another and determine the weight
to be given the evidence). Based on the expert testimony, the jury could have found that B
was susceptible to undue influence, and given his on-going history of alcoholism, ample
opportunity existed to unduly influence B while he was drinking.
2. Existence & Exertion of an Influence
“[T]he establishment of the existence of an influence that was undue is based upon
an inquiry as to the nature and type of relationship existing between the testator, the
contestants[,] and the party accused of exerting [the] influence.” Rothermel, 369 S.W.2d at 923.
Similarly, establishment of the exertion of such influence is generally predicated upon an
inquiry about the “opportunities existing for the exertion of the type of influence or
22

deception possessed or employed, the circumstances surrounding the drafting and execution
of the testament, the existence of a fraudulent motive, and whether there has been an
habitual subjection of the testator to the control of another.” Id.
Although several business associates testified that B made his own decisions and
could not be controlled, the vast majority of those business associates testified that B either
never drank or was never intoxicated in their presence. As a result, these associates were
unaware of how B would respond to influence exercised while he was drinking or
intoxicated. The jury would have the right to consider whether in a period of intoxication B's
otherwise strong intellect yielded to unduly exerted importunities. See Craycroft v. Crawford,
285 S.W. 275, 278 (Tex. 1926).
Evidence was presented that B drank alcoholic beverages during his taped interviews
with Martin Booth, who was writing a book about B's life. In one interview excerpt in which
the jury could infer B was intoxicated, the following exchange occurred:
MARTIN BOOTH: You were officially engaged in the eyes of the world. Everybody
knew about it.
LAURA JOHNSON: A tiny—tiny, tiny diamond, as you can see.
MARTIN BOOTH: Yes, a minute diamond. And then you set a wedding date,
presumably.
LAURA JOHNSON: Yes.
MARTIN BOOTH: Which was when?
LAURA JOHNSON: Which was the 8th of November, with 8 being the lucky
Chinese number, 8th of November, nineteen ninety—what year, Darling?
B JOHNSON: What—when was it?
LAURA JOHNSON: When was it Darling?
B JOHNSON: I don't—
LAURA JOHNSON: You have two strikes and you're out.
B JOHNSON: It was three—three from '97, wasn't it?
LAURA JOHNSON: No. Two strikes and you're out.
B JOHNSON: '96
LAURA JOHNSON: Oh, good boy, you can stay in the game. You can come home
with me.
At trial, this clip was played for Howard Nolan, the president of United Way of San
23

Antonio at the time B was asked to serve as chair of the United Way campaign. Nolan stated
that he was uncertain if B was drinking during the taping, but it did not sound like the B he
knew. The jury was free to conclude from this taped excerpt that B was intoxicated.
Several of the employees who worked in B's office, including Rita Sullivan and
Madeleine Sandefur, testified regarding B's on-going drinking, as did his daughters and sonsin-law. Ceci testified that B would disappear for weeks when he was on a binge and could
wind up in a different county, state, or country. Testimony was introduced that any flight B
chartered was stocked with vodka, and in a nine-month period in 1999, B spent almost
$7,000 on liquor and wine. Evidence was also introduced about B's mental abilities while
intoxicated. For example, several witnesses testified that B would call late at night or early in
the morning after he had been drinking and want to have long, rambling conversations. Rita
Sullivan testified that B called her at 2:00 a.m. to ask her how to use the remote control to
the television. Sullivan also called B's attorney for advice when B called Sullivan while
intoxicated to obtain a $200,000 nonrefundable check to purchase a house. Martin Booth
testified that B called him one night while intoxicated to report an improvement in his health
and then called again the following day and repeated his report. Ceci testified that following
his drinking binges, B would be depressed and contrite. The book written by Booth stated
that B's drinking caused him problems, recounting that his fellow directors on AT & T's
board of directors became concerned about his drinking, and B missed a party in his honor
after he became intoxicated while drinking on a train on his way to the party. One time B
ordered an employee to purchase tickets to Santiago, Chile, but when the employee called B
about going to the airport, B had no recollection of requesting the trip. In contrast to this
evidence of B's significant drinking and its effect on his conduct, Laura denied that B had a
drinking problem or was ever intoxicated in her presence.
Ceci also testified that before B married Laura the family was traditionally informed
of B's estate planning. Ceci testified that B did not keep his estate plan a secret, and they
approached the plan as a team. After B met Laura, however, the evidence established that a
decision was made during the course of the estate planning meetings not to tell Ceci and
Sarah about the dissolution of Johnson Properties or the formation of the 1998 Family
Trust. Notes from estate planning meetings and telephone conferences contained numerous
statements by the estate planning professionals reassuring and encouraging B not to disclose
the estate plan to Ceci and Sarah.
24

Evidence was admitted that when Stacy Eastland was first considering the family
limited partnership structure for the estate, the children were included in the partnership.
However, in mid-July of 1997, the estate planning notes reflect that Ceci and Sarah were to
be left out because they were “turning against” B. B was admitted to a hospital in Hong
Kong on July 23, 1997. The hospital records reflect that B had been on a two-week drinking
binge only days before his admission into the hospital. Around this same time, Eastland
testified that B's comments during a telephone conference were not ordinary, and he could
have been intoxicated, so they decided to re-do the phone call. Peter Milton from J.P.
Morgan previously had told Eastland to call B in the morning because of his excessive
drinking.
Appellees contend the evidence also established a habitual subjection of B to Laura's
control. Although B had a prenuptial agreement with his second wife, Lynne, Laura refused
to consider a prenuptial agreement, and B expressed concern that his insistence on a
premarital agreement would seriously interfere with their relationship. B discussed his estate
plan with Laura prior to their marriage, and Laura attended numerous estate planning
meetings. Although Laura testified that she did not pay attention and was not engaged
during the meetings, other estate planning professionals at the meetings testified that Laura
was attentive and made comments.
Laura also tried to suggest to the jury that she was not a businesswoman as a reason
for her lack of involvement, but several witnesses who were B's business associates testified
that she was a smart businesswoman. Laura owned or co-owned several businesses in Hong
Kong before she met B, and she helped run those businesses. One of those businesses was a
pub called Mad Dogs. B invested with Laura to open a Mad Dogs at the Hyatt in San
Antonio, and B loaned the business $1.4 million. After B died, a settlement was reached in
which B's estate was paid only approximately $.50 for each dollar loaned and B's estate
relinquished the ownership interest B had in the business. While negotiating the settlement,
Milton sent an email noting the loan was unsecured. In the email, Milton stated, “Believe me
B Johnson screwed this up to a fair-thee-well as we used to say up east.” In another email,
Milton commented, “I am a little annoyed that I didn't know how well financed Mad Dogs
was. On the other hand I think that we have done more than B Johnson would have done to
protect his assets; he was not good about separating his love from his assets. That is a direct
quote from him.” Although Laura denied negotiating the compromise with regard to Mad
25

Dogs, another email from Milton to Copley discussing the negotiation of the compromise
refers to a meeting with Laura and another person. In the email, Milton stated, “B should
never have given this kind of money to Mad Dogs of San Antonio. I think it was love not
sense.”
Prior to B and Laura's marriage, one note by Copley stated that Laura wanted to
know what the children were getting under the estate plan. One letter summarizing certain
estate planning documents had writing in the brown felt tip pen B traditionally used, but also
had writing in a red pen. The jury could infer from the evidence and testimony that Laura
had reviewed the document and made comments.
On a few occasions, B requested that Copley investigate whether the King Ranch
royalties and a house in Cabo San Lucas could be left to his children, but subsequently called
and stated that he changed his mind. The jury could infer that B changed his mind after
discussions with Laura. With regard to the house in Cabo San Lucas, Laura testified that B
immediately rejected Sarah's request that the house be left to the daughters/grandchildren
for tax reasons; however, the evidence established that B asked Copley to research the issue
and had not made an immediate decision. With regard to the King Ranch royalties, evidence
was presented that B stated in a conversation with his children in 1999 that the King Ranch
royalties were to be kept in the family, and that Laura, who overheard the discussion, stated
she would never take a family heirloom. By 1999, however, the King Ranch royalties had
been transferred to BKJ Interests, and under the estate plan, the King Ranch royalties would
not remain in the family but would eventually be controlled by the foundation. Evidence was
presented that in 2000 B again broached Copley with the idea of leaving the King Ranch
royalties to the children. Copley sent an email regarding his conversation with B about this
request in which Copley stated leaving the King Ranch royalties to the children “would
require an audit of his estate, whereas, at the present time, it is a non-audit.” At trial,
however, Copley stated that a “slight chance” existed that leaving the King Ranch royalties
to the children would enhance “the possibility of an audit.” Moreover, in his letter to B
regarding the manner in which such a transaction could be structured, Copley spent
considerable time discussing the tremendous tax consequences of the transaction and
concluded, “the tax cost is heavy.” When Eastland was asked, however, whether there would
have been “tax efficient ways” to transfer the King Ranch royalties to the children, he
responded that there were, and he would never have told B not to leave the King Ranch
26

royalties to the children. Moreover, evidence was presented from which the jury could find
that Copley represented Laura on several legal matters and could have a conflict of interest
in providing advice that would result in assets being left to the children, thereby diminishing
the assets in the life estate left to Laura.
Laura also retained the family scrapbooks and photo albums, claiming that B did not
want Ceci and Sarah to have them until after Patsy died; however, the evidence established
that Laura did not return the family scrapbooks and photo albums even after Patsy died, but
kept possession of them for the duration of the trial. Evidence also was presented that Laura
refused to give B's granddaughter, Alice, a silver spoon set that B wanted her to have.
Although Laura testified that the attorneys had told her not to give away any of the estate
assets because of the pending litigation, evidence established that she gave items belonging
to the estate to other non-family members.
Prior to meeting Laura, B was an avid hunter and often hunted with his children and
grandchildren. As the book on B's life stated, “B lived to hunt.” After meeting Laura, B
rarely hunted. In one of his notes to his employee Madeleine Sandefur, B stated that dove
hunting continued to be a problem for Laura. B was scheduled to hunt on property
belonging to his ranch manager, Claude Johnson; however, the hunt did not occur after
Claude expressed his concerns about offending Laura. Although B issued a press release and
was quoted in a newspaper saying that he purchased Black Creek Ranch intending to
continue its commercial hunting operations, to continue the tradition of South Texas
hunting, and to hunt with his grandchildren, no hunting was permitted on Black Creek after
the first year's commercial commitments were fulfilled. Although Laura testified that B and
she agreed before Black Creek was purchased to end the hunting, Laura's testimony was
inconsistent with the newspaper accounts of B's remarks. Moreover, a passage in the book
about B's life also states Laura put an end to the hunting.
B had expressed to Ceci that he was glad Laura was older and would not want
children. The record contains evidence that B underwent sperm testing in 1995 prior to his
marriage to Laura. Laura subsequently underwent in vitro fertilization. The evidence was
conflicting as to whether at some point Laura became pregnant. Laura testified that home
pregnancy tests taken in November of 1998 showed that she was pregnant. Although Laura
subsequently went to a hospital to be checked, the testing did not show anything in her
uterus, but a hormone that becomes elevated during pregnancy was in fact elevated. There
27

was some suggestion, however, that the elevated level could have been caused by the in vitro
procedure. When B called Ceci and Sarah to tell them they lost a baby, Ceci and Sarah were
shocked and reacted negatively. Ceci sent a letter apologizing, which Ceci testified would
normally reopen communications. The evidence contained a letter that B had drafted
accepting the apology; however, the letter that was actually sent did not accept the apology.
Only after a letter was written specifically apologizing to Laura was communication
reopened. Sarah testified that when she met B in his office after this incident, B told her that
he did not want to have a child, but Laura insisted.
One expert testified that relationship poisoning can be a tool to unduly influence a
person, including making negative remarks about a person's children and re-interpreting
historical events in a negative manner. Although several people were interviewed for the
book about B's life, Ceci, Sarah, and Hager were not interviewed. Instead, Laura was
extensively interviewed about events that occurred before she met B. The book contained a
suggestion that Kley had committed suicide based on Booth's interview of Laura; however,
Laura had no proof that Kley committed suicide, and other evidence established that he was
killed in a car accident, likely driving while intoxicated. In the early 1990's, before B met
Laura, B was having financial trouble; B and Laura's interviews for the book conflict as to
whether Ceci and Sarah knew of the extent of the financial trouble. Laura said they did; B
said they did not. B sold the Chaparrosa ranch to alleviate the financial trouble. The
children’s' trusts, which also owned an interest in the ranch, sued B because the sales
agreement had money going to J.P. Morgan before the trusts, and the trustees did not
believe the trusts were receiving the amount they were entitled to receive from the sale.
Laura stated in an interview that Ceci and Sarah filed the lawsuit to bury B financially;
however, B had stated Ceci and Sarah did not know the extent of his financial trouble. The
jury could consider Laura's reinterpretation of these historical events in a negative manner as
evidence of relationship poisoning.
The jury also heard evidence that Laura made negative remarks about Ceci and
Sarah. Laura's friend, Reverend Zbinden, was interviewed by Booth and stated Laura had
told him that Ceci and Sarah were greedy and ungrateful. During his deposition, Reverend
Zbinden testified it was not unusual for Laura to speak negatively of Ceci and Sarah. Laura
told Copley in a telephone conversation that Sarah was vile, not smart, and had the attention
span of a gnat. Based on the evidence presented, the jury could infer that Laura also spoke
28

negatively of Ceci and Sarah to B.
Having reviewed the record, we conclude the evidence is legally and factually
sufficient to support a finding that undue influence existed and was exerted.
3. No Execution “But For” the Influence
“Finally, the establishment of the fact that the testament executed would not have
been executed but for such influence is generally predicated upon a consideration of whether
the testament executed is unnatural in its terms of disposition of property.” Rothermel, 369
S.W. 2d at 923. During oral argument, the Appellants placed great emphasis on one sentence
in this court's decision in Estate of Davis v. Cook, 9 S.W.3d 288 (Tex. App.-San Anonio 1999,
no. pet). In that case, when describing a jury's consideration of unnatural disposition, we
stated, “In this respect, only where all reasonable explanation for the devise is lacking may the trier
of facts consider the disposition as evidence of disorder or lapsed mentality.” Id. at 294.
(emphasis added). Based on the italicized portion of this statement, the Appellants argued
that the standard of review for no-evidence claims in undue influence cases is different than
in other types of cases. In short, Appellants contend the evidence could not support a
finding of undue influence because evidence was presented establishing a reasonable
explanation for B's disposition of his estate. We cannot accept Appellants' interpretation of
the quoted portion of the Davis opinion because it ignores the standard of review established
by the Supreme Court in City of Keller v. Wilson, 168 S.W. 3d 802, 827-30 (Tex. 2005), and
establishes a totally different standard of review in undue influence cases. Tracing the source
for the statement made in Davis reveals the fallacy of Appellants' position. The source for the
statement in question is Craycroft v. Crawford, 285 S.W. 275, 278-79 (Tex. 1926), in which the
court stated, “If all explanation be lacking, the trier of fact may take the circumstance as a
badge of disordered or lapsed mentality or of its subjugation; if some explanation be
advanced, the jury may pass upon its adequacy and attribute to the circumstance and its
explanation such weight as may be thought proper, having in view all other relevant
evidence.” Accordingly, evidence of a reasonable explanation for an unnatural disposition
does not prevent a jury from finding undue influence. Instead, where such evidence is
preferred, the jury must determine which explanation should be given more weight and
which explanation is more credible. In this case, the jury disbelieved the explanation
proffered by the Appellants in finding undue influence.
Considering whether the disposition was unnatural, we must consider evidence of
29

B's stated desires and actions. The evidence established that B made several comments about
the interest in the Hyatt being passed to the children/grandchildren. Similarly, evidence
established that B was very proud of his heritage and wanted his descendants to inherit the
King Ranch royalties. The majority interest in both of those assets, however, was not
inherited by the grandchildren. Instead, Laura initially would benefit from the income from
those assets during her life, and the interest would then pass to the foundation. Although the
Appellants contend Laura did not receive any greater interest in B's estate than B's prior
wives, the inclusion of the majority interest in these two assets in Laura's life estate greatly
increased its value and was contrary to evidence that B wanted his descendants to inherit
those assets. All of the estate planning documents that the jury found were the result of
undue influence were executed after the dissolution of Johnson Properties and in connection
with the creation of BKJ Interests.
Perhaps more importantly, the 1997 Management Trust expressly lists five charities
as the remainder beneficiary after Laura's life estate consistent with the charities B had listed
in his prior documents, which included: (1) United Way of San Antonio & Bexar County; (2)
Cornell University; (3) National Cowboy Hall of Fame; (4) Trinity University; and (5)
Trustees of Deerfield Academy. The evidence established that B had strong ties with these
five charities. The documents found to be the product of undue influence eliminate a
mandatory distribution to these favored charities. Instead, the remainder beneficiary after
Laura's life estate became a perpetual foundation. Although the trust document listed
charities that B wanted to be the primary focus of distributions from the foundation, the
trustee of the foundation had complete control over the selection of the charities that would
benefit from foundation distributions. In addition, the list excluded the National Cowboy
Hall of Fame with which B had strong ties, but included a foundation with which B had no
ties and which Eastland admitted was mistakenly included. Finally, the list included “[a]ny
other organization benefiting conservation, environmental causes, protection of animals,
[and] protection of nature or the environment,” which described causes supported by Laura,
not B. Similarly, the remainder beneficiary of the grandchildren's trust under the 1997 trust
document are the five charities B selected, as opposed to the foundation which was the
remainder beneficiary in the 1998 trust documents.
The evidence presented was legally and factually sufficient to support a finding that
the wills and trusts rejected by the jury would not have been executed but for the undue
30

influence.
CONCLUSION
After full consideration of the Appellants' claims, we conclude the record supports the
jury's finding that Belton Kleberg Johnson executed certain wills and trusts as a result of
undue influence. Accordingly, we affirm the judgment of the trial court.

Wright v. Roberts, 797 So.2d 992
COBB, Justice, for the Court:
¶ 1. In December of 1995, attorney Armon Lee prepared wills, a deed, and powers of
attorney for Emma Jane Wright and her husband, Homan Wright. Homan signed his will
and power of attorney on December 28, 1995, at Lee's law office. Emma Jane signed the
deed, her will, and her power of attorney on January 2, 1996, while on her eventual death
bed.
¶ 2. The deed conveyed, to the exclusion of her husband Homan, Emma Jane's twothirds interest in 200 acres of timber in fee simple to Mamie Roberts, a cousin by marriage,
and reserved a life estate in a house and one acre of land surrounding the house for Emma
Jane and Homan. Emma Jane's will conveyed all of her remaining property to Roberts, in
trust for the care of Homan, then to Roberts and to Roberts's children upon Homan's death.
Homan's will had parallel provisions. The attorney was not present when Emma Jane signed
the instruments. One of the attesting witnesses to Emma Jane's will was the attorney's
secretary. The other attesting witness noted on her affidavit that neither the secretary nor
Emma Jane identified the document she signed as a will, rather it was referred to as “papers
to take care of Homan Wright”. She also marked through on the affidavit the part which
said “Emma Jane was of sound and disposing mind.”
¶ 3. The powers of attorney gave Roberts complete power to run the Wrights' affairs.
Attorney Lee had been Roberts's attorney over the years, having done extensive land
transaction work for Roberts and her son. Attorney Lee predeceased Emma Jane.
¶ 4. Emma Jane died on January 22, 1996, and a week later, Homan filed suit to set
aside the deed and to contest the will which Emma Jane executed. On May 27, 1997,
Roberts presented the will for probate and the cases were later consolidated The matter was
continued twice because Roberts was hospitalized, and it eventually was heard in August of
1998.
¶ 5. The Chancellor issued his opinion on December 30, 1998, finding the following:
31

1. A confidential relationship did not exist between Roberts and the Wrights.
2. Even if a confidential relationship existed, Roberts's action of taking all of Emma Jane's
real property did not over-reach or abuse her authority as the dominant party to the
relationship.
3. Although Emma Jane stated specific items which were inconsistent with the instruments
which were executed, she knew the objects of her bounty and the quantity of her estate
and had testamentary capacity.
4. Although Dr. Coghlan examined Emma Jane shortly before the execution of the
documents and stated her condition at that time as “senile” and suffering from other
ailments, such did not meet the legal criteria of lack of capacity.
5. There were no suspicious circumstances surrounding the execution of the documents.
Aggrieved, Homan Wright brings this appeal raising the following six issues:
I. The Chancery Court manifestly erred in not finding specifically that a fiduciary or
confidential relationship existed between Emma Jane and Homan Wright and Mamie
Roberts and that powers of attorney signed by them interposed no confidential
relationship because they were set up only to protect the attorney in fact, Mamie Roberts.
II. The Chancery Court manifestly erred in failing to apply the correct standard, in that the
existence of a confidential relationship required independent counseling for both Homan
Wright and Emma Jane Wright.
III. The Chancery Court manifestly erred in finding that Mamie Roberts did not overreach
or abuse her authority and that the only things done were for Emma Jane’s benefit.
IV. The Chancery Court manifestly erred in finding that no “suspicious’ facts exist
surrounding the execution of the documents.
V. The Chancery Court manifestly erred in finding that the only evidence of lack of
capacity was the testimony of Dr. Coughlan and that did not rise to the requisite level of
proof.
VI. The Chancery Court manifestly erred in finding that Emma Jane knew the quantity of
her estate.
¶ 6. Because we determine that the chancellor abused his discretion and committed
manifest error, we reverse and render in part and remand in part.

FACTS
¶ 7. Emma Jane and Homan Wright lived in an old frame house which she had
32

inherited from her father. They did not have the amenities of an air-conditioner, hot water,
telephone or bathroom (only an outhouse). They had married late in life and had no
children. Emma Jane managed their finances. At her death, they had been married for
twenty-four years. Homan is a retired saw mill and chicken farm worker. He had only
attended a few days of school in the first grade, and his literacy was limited to signing his
name.
¶ 8. Mamie Roberts was married to one of Emma Jane's cousins and had known
Emma Jane for fifty-eight years. When Emma Jane's health declined, Roberts provided her
with transportation to the doctor and helped her in other ways. On December 9, 1995, when
Emma Jane's medical condition worsened, Roberts took Emma Jane to the hospital where
she was admitted. By that time Roberts had begun assisting Emma Jane in paying bills.
¶ 9. Armon Lee, the attorney who prepared the documents, had done extensive work
for Roberts and her son. Roberts stated in her deposition that she had chosen Armon Lee to
prepare the power of attorney because he was a good attorney. In court she refuted that she
had selected the attorney, but stated that she had driven Homan to Armon Lee's office on
December 28, 1995 where he signed his power of attorney. Roberts's son was present at the
attorney's office when Roberts and Homan arrived. Roberts's son testified that his presence
was just a coincidence. Homan was never consulted regarding his wishes. No one identified
the instrument as a broad power of attorney, and Homan thought he was signing something
which would allow Roberts to take care of his mail. Homan testified that he would not have
signed otherwise. Roberts testified that she requested that the Wrights execute powers of
attorney in her favor to facilitate her helping them with their affairs and to protect herself.
¶ 10. Roberts testified that her son was fairly sophisticated concerning real estate and
that he had “owned a good bit, and his dad before him owned a good bit.” When asked if
her son had ever met with Armon Lee to discuss how the documents were to be prepared,
Roberts replied, “Not about that, I don't think. But now he was with Mr. Lee. He's, he's a
busy man, and Mr. Lee did his work.”
¶ 11. Roberts conceded that Lee was an attorney with whom Emma Jane had never
had prior dealings. She asserts that Armon Lee first came into contact with Emma Jane
when he brought a deed unconnected with the Wrights' property to the hospital for Roberts
to sign when she was visiting Emma Jane.
¶ 12. Roberts's brief states “[i]t was Emma Jane who talked to Attorney Lee about
33

the deed, and it was Emma Jane who was in contact with Attorney Lee by phone as to the
other instruments.” Yet Roberts testified that within a few days of having the power of
attorney drafted, she had the deed and will made in her favor. It is undisputed that the
powers of attorney, the deed and wills were prepared at the same time.
¶ 13. Emma Jane, already very ill, had a particularly bad night of January 1, 1996.
Around noon the next day, Roberts visited Emma Jane and Homan at the hospital. During
that visit, Roberts called Lee's secretary to ask if the documents were ready and to request
that someone bring them to the hospital because Emma Jane was “ready to sign her papers.”
Although Lee was at lunch, his secretary brought the documents immediately. Five or six
relatives, including Roberts, were in Emma Jane's hospital room when the secretary arrived.
There was testimony of a general confusion in the room and that Roberts was telling jokes.
There was conflicting testimony concerning whether the documents were actually read word
for word. After approximately one and one half hours of coaxing Emma Jane signed the
instruments. There was testimony that she was confused during the process, apparently
thinking she was writing a check and that she had asked for, but was not given her glasses.
After executing the documents, Emma Jane told the secretary of several bequests that she
would like for her will to contain. These bequests included a gift of the one-half acre of land
that she had just deeded to Roberts and Roberts's son. None of the requested changes were
made prior to her death three weeks later.

STANDARD OF REVIEW
¶ 14. A chancellor's findings of fact will not be disturbed unless they are manifestly
wrong or clearly erroneous, or unless the chancellor applied an erroneous legal standard. If
the Chancellor's findings are supported by substantial, credible evidence in the record, this
Court will not reverse. In re Estate of Grantham, 609 So.2d 1220, 1223 (Miss. 1992).
¶ 15. Homan Wright's six assignments of error in essence claim that the chancery
court committed manifest error by not finding that Mamie Roberts and Emma Jane had a
confidential relationship and that Roberts exerted undue influence over Emma Jane through
this confidential relationship. Because of this alleged undue influence, Homan argues that
both the will and deed in question must be voided.
¶ 16. The law in this state on fiduciary or confidential relationships and undue
influence is well settled. Its application has been made to both inter vivos and testamentary
transactions. Murray v. Laird, 446 So.2d 575, 578 (Miss. 1984). With both gifts testamentary
34

and gifts inter vivos, once the presumption of undue influence has been established, the
burden of proof shifts to the beneficiary/grantee to show by clear and convincing evidence
that the gift was not the product of undue influence. In re Estate of Dabney, 740 So.2d 915,
921 (Miss. 1999).
I. Did a Confidential Relationship Exist Between Emma Jane and Roberts?
¶ 17. This Court has long held that a confidential relationship does not have to be a
legal one, but the relation may be moral, domestic, or personal. The confidential relationship
arises when a dominant, over-mastering influence controls over a dependent person or trust,
justifiably reposed. Murray v. Laird, 446 So.2d at 578. Whenever there is a relation between
two people in which one person is in a position to exercise a dominant influence upon the
other because of the latter's dependency upon the former, arising either from weakness of
mind or body, or through trust, the law does not hesitate to characterize such relationship as
fiduciary in character. Madden v. Rhodes, 626 So.2d 608, 617 (Miss. 1993).
¶ 18. This Court has enumerated several factors to consider in determining whether a
confidential relationship exists: (1) whether one person has to be taken care of by others, (2)
whether one person maintains a close relationship with another, (3) whether one person is
provided transportation and has their medical care provided for by another, (4) whether one
person maintains joint accounts with another, (5) whether one is physically or mentally weak,
(6) whether one is of advanced age or poor health, and (7) whether there existed a power of
attorney between the one and another. Dabney, 740 So.2d. at 919.
¶ 19. Emma Jane and Roberts's relationship had become confidential in nature even
before the powers of attorney were signed. Emma Jane had relied on Roberts's son for
advice regarding the sale of timber off her land. He had negotiated oil leases for her. He had
also arranged for repairs and maintenance on the Wrights' home. When Emma Jane became
ill in 1995, Roberts began taking her to the doctor. Roberts admitted her to the hospital in
December of 1995. By that time, Emma Jane had entrusted her purse to Roberts who
assisted the Wrights in paying their bills. This arrangement continued throughout Emma
Jane's hospitalization.
¶ 20. Clearly, Emma Jane was of advanced age, in poor health, physically and
mentally weak and was dependent on Roberts for transportation and medical care. They
were related by marriage and had been friends for fifty-eight years. Considering the Dabney
factors, Homan proved by clear and convincing evidence that Roberts had a confidential
35

relationship with Emma Jane.
II. Did Roberts Abuse Her Confidential Relationship with Emma Jane?
¶ 21. Having ascertained that a confidential relationship existed between Roberts and
Emma Jane, the next inquiry is whether Roberts abused that relationship. With regard to the
deed, there is a presumption that it is a product of undue influence, which Roberts must
rebut by clear and convincing evidence. With regard to the will, additional proof is required
in order to raise the presumption of undue influence and shift the burden of proof to
Roberts.
[A]lthough the mere existence of confidential relations between a testator and a
beneficiary under his will does not raise a presumption that the beneficiary exercised undue
influence over the testator, as it does with gifts inter vivos, such consequence follows where
the beneficiary ‘has been actively concerned in some way with the preparation or execution
of the will, or where the relationship is coupled with some suspicious circumstances, such as
mental infirmity of the testator;’ or where the beneficiary in the confidential relation was
active directly in preparing the will or procuring its execution, and obtained under it a
substantial benefit.
Croft v. Alder, 237 Miss. 713, 723-24, 115 So.2d 683, 686 (1959).
When there is a fiduciary or confidential relation, and there is a gift or conveyance of
dubious consideration from the subservient to the dominant party, it is presumed void. This
is not because it is certain the transaction was unfair; to the contrary, it is because the Court
cannot be certain it was fair. Estate of McRae, 522 So.2d 731, 737 (Miss. 1988). Given the
finding that a confidential relationship does exist between beneficiary and the testatrix and
that the beneficiary has been actively concerned in some way with the preparation or
execution of the will, the law raises a presumption that the beneficiary exercised undue
influence over the testatrix, and casts upon the beneficiary the burden of disproving undue
influence by clear and convincing evidence. Dabney, 740 So.2d. at 920.
¶ 22. While Emma Jane was in the hospital, Roberts took Homan to the law office of
Armon Lee. Neither Emma Jane nor Homan had any prior dealings with Armon Lee, nor
had Homan ever met him prior to this time. Further, Homan did not ask to be taken to Lee.
Roberts conceded that she selected Armon Lee to prepare the powers of attorney, the deed
and the wills. Roberts's son was meeting with Lee when Mamie Roberts and Homan arrived
at Lee's office. After Roberts's son left, Homan was asked to sign “a paper” which he
36

believed would only allow Roberts to take care of his mail. Instead, the instrument was a
broad power of attorney for Roberts to conduct all of Homan's affairs. Further, Lee's
secretary testified that she had first learned about someone wanting these documents
prepared from Mamie Roberts.
¶ 23. There is substantial evidence in the record to demonstrate that the beneficiary
of the will, Mamie Roberts, had been actively involved with both the preparation and
execution of the will. Therefore, there is a presumption that Roberts exercised undue
influence over Emma Jane, and the burden of proof shifts to Roberts to rebut.
[Once] the circumstances give rise to a presumption of undue influence, then the
burden of going forward with the proof shifts to the grantee/beneficiary to prove by clear
and convincing evidence of: (1) good faith on the part of the grantee/beneficiary; (2)
grantor's[/testator's] full knowledge and deliberation of his actions and their consequences;
and (3) [independent consent and action by the grantor/testator]. Murray, 446 So.2d at 578.
III. Did Roberts Rebut the Presumption of Undue Influence by Clear and
Convincing Evidence?
A. Did Roberts prove she exercised good faith by clear and convincing evidence?
¶ 24. This Court has previously stated that the important factors for the appellate
court to consider in determining whether the grantee/beneficiary used good faith are:
“(a) the determination of the identity of the initiating party in seeking preparation
of the instrument, (b) the place of the execution of the instrument and in whose
presence, (c) what consideration and fee were paid, if any, and (d) by whom paid,
and (e) the secrecy or openness given the execution of an instrument.” Id.
¶ 25. Roberts and her son had both tried to buy Emma Jane's land on several
occasions. With Emma Jane's permission, Roberts's son had put a cabin built by their
grandfathers on the land in the 1970's. He stated that it was his desire that the property with
which he had been familiar all his life, and on which he had hunted over the years, remain in
his family. He testified that he offered to buy the land from Emma Jane, but that she
“definitely” did not want to sell it. He later testified that he never “tried to buy Mrs. Wright's
part,” rather the remaining one-third interest owned by Emma Jane's closest blood relatives
in Birmingham, Alabama. Roberts herself testified: “I went out there, and it was hot, it was
hot as it could be. And I said, ‘Emma, why don't you sell me this land and let me help you
get somebody to put you in a bathroom and things that you need and an air conditioner.’ ”
37

Homan testified, regarding the land, that “[e]ver time, Mrs. Mamie Roberts tried to buy it.”
¶ 26. Roberts stated that she did not consider Homan capable of caring for himself
and that she had arranged for him to be admitted to a personal care home while Emma Jane
was in the hospital. Yet at the time of trial (three years later) Homan was still living
independently ... even gardening.
¶ 27. Emma Jane's primary concern was that Homan was cared for after her death.
Regarding her power of attorney over the Wrights' affairs, Roberts testified that she had
believed she “might have to sell some of the timber to take care of Homan, because he
needed eye surgery.” Nevertheless, her attorney prepared documents giving her Emma Jane's
timber. In her brief she stated: “There was no need for either of them, especially Homan, to
own any land beyond the reserved life interest.” Additionally, Lee was never paid for his
services, nor was anyone ever billed.
¶ 28. Roberts's only evidence of good faith was her testimony that she intended only
to do what was in Homan's best interest, since she had promised Emma Jane she would take
care of Homan for the rest of his life. This testimony is insufficient to rebut the undisputed
evidence to the contrary.
¶ 29. Roberts selected the attorney, arranged for the preparation of the documents in
which she was a beneficiary, and attended their signing. Emma Jane was presented the
documents while lying sick in her hospital bed. Any consideration given by Roberts was
dubious, at best, consisting primarily of an illusory promise to take care of Homan in the
future.
¶ 30. Roberts has failed to prove by clear and convincing evidence that she acted in
good faith in her dealings with Emma Jane.
B. Did Roberts prove Emma Jane had full knowledge and deliberation of her actions and their consequences
by clear and convincing evidence?
¶ 31. This Court has not hesitated to set aside instruments where there were
suspicious circumstances regarding their execution. In one such case involving an elderly
couple, no consideration was given for a deed, the grantors thought they were signing a will,
the wife was physically exhausted by caring for her husband, both lacked mental capacity,
and one thought they could still sell the property. Ladner v. Schindler, 457 So.2d 1339 (Miss.
1984). This Court has stated:
Factors important to address the grantor/testator's knowledge, at the time of
38

execution of any instrument are (a) his awareness of his total assets and their
general value, (b) an understanding by him of the persons who would be the
natural inheritors of his bounty under the laws of descent and distribution or
under a prior will and how the proposed change would legally affect that
prior will or natural distribution, (c) whether non-relative beneficiaries would
be excluded or included and, (d) knowledge of who controls his finances and
business and by what method, and if controlled by another, how dependent
is the grantor/testator on him and how susceptible to his influence. Murray,
446 So.2d at 578.
¶32. Emma Jane's physician, Dr. Coghlan, had seen her near the time she signed the
documents. He testified: (1) Because she was in congestive heart failure she might not have
been getting adequate oxygen to her brain, and it may have affected her mental ability some;
(2) She would not take the oxygen which would affect her ability to remain conscious to a
certain extent; (3) In noting that he would not rely on her ability to understand the effect of
signing a deed conveying real property on that date, he stated, “... if I were dealing in some
kind of business deal with her, I would not have thought she was competent to make the
business arrangement ... I had a problem with the decisions that she made in regard not to
eat, not to take her medication, and not to do anything along that line that would have been
contributing to her health.”
¶33. During that period of time, Dr. Coghlan noted that she was probably unable to
concentrate due to the state of her health. It was his impression that Emma Jane was senile
prior to and including the time during which she signed the documents.
¶ 34. In addition to Dr. Coghlan's testimony, there was other evidence of Emma
Jane's lack of capacity. Testimony by Roberts and the lawyer's secretary showed lack of
capacity. Roberts conceded Emma Jane seemed confused and believed that she was writing a
check for legal services. The lawyer's secretary testified that after signing away her real
property by deed, Emma Jane then attempted to convey by will land which she had just
deeded away.
¶35. Roberts also admitted that Emma Jane asked for, but was not given, her glasses.
Regarding the documents, Roberts stated, “She couldn't read ‘em very well. She wanted her
glasses.... They were in the drawer right there by her, in her bed, in the stand....” Emma
Jane's confusion at the time of signing clearly created doubt as to whether she knew the
39

quantity of her estate.
¶ 36. Roberts has failed to present clear and convincing proof that Emma Jane
exhibited full knowledge and deliberation of her actions.
C. Did Roberts prove Emma Jane had independent consent and action?
¶ 37. We have previously stated that “[t]he participation of the beneficiary/grantee,
or someone closely related to the beneficiary, arouses suspicious circumstances that negate
independent action. Harris v. Sellers, 446 So.2d 1012, 1015 (Miss. 1984).
¶ 38. This third prong of the Murray test for rebutting the presumption of undue
influence, was formerly stated by this Court as, “Advice of (a) competent person, (b)
disconnected from the grantee and (c) devoted wholly to the grantor/testator's interest.”
Murray, 446 So.2d at 578. However, three years later this Court revised the third prong,
stating:
The independent advice prong of Murray has been read too strictly. Considering
the heavy burden placed upon one seeking to overcome the presumption of
undue influence, we find it necessary to redefine the third prong of the Murray
test. This we do to the end that the power our law vest in property owners to
make bona fide inter vivos gifts not be practically thwarted by often impossible
evidentiary encumbrances. We declare that the appropriate third prong of the
test is a requirement that the grantee/beneficiary prove by clear and convincing
evidence that the grantor/testator exhibited independent consent and action.
Mullins v. Ratcliff, 515 So.2d at 1193.
¶ 39. There is no proof that Emma Jane or Homan spoke with any other attorney
independent of Armon Lee, the Roberts's attorney, before or after signing the documents.
When Roberts was asked if she were aware of whether Emma Jane or Homan had ever
talked to any attorney other than Armon Lee regarding the documents, she stated that she
was not. Roberts and her son used Armon Lee extensively as their attorney. Roberts testified
that neither Emma Jane nor Homan had ever contacted Armon Lee to perform legal
services.
¶ 40. Roberts in one instance stated that she procured the preparation of the
documents, but in another she denied this. It appears that the documents were prepared
before the Wrights were consulted, because Lee's secretary, based upon personal knowledge,
believed that Homan could not write his name and had typed spaces for his mark to be
40

attested by witnesses. It was Roberts's son who brought to the secretary's attention the fact
that Homan could sign his name. If the Wrights had, in fact, consulted the lawyer, he would
have likely determined such information. Furthermore, the documents were prepared in
early December, and some were not signed until the next month. Lee's secretary testified
that Emma Jane was hesitant in signing the will. Even Roberts stated: “I didn't know
whether she was [going to sign] or not. She wanted to think about it, and she wanted to
think about selling the place....” Roberts told Emma Jane that if they kept the secretary too
long, it would cost them money. In an attempt to convince Emma Jane to sign, Roberts told
her that if she did not sign, her property would go to the state and the lawyers. Roberts's
brief unconvincingly states that this was not an effort to coax Emma Jane, rather, merely an
“expression of frustration.”
¶41. It is clear from the record that Roberts failed to prove by clear and convincing
evidence that Emma Jane exhibited independent consent and action.

CONCLUSION
¶42. Homan showed by clear and convincing evidence that a confidential
relationship existed between Emma Jane and Roberts, thereby creating a presumption that
the deed was the product of undue influence. Homan has further shown that Roberts abused
that confidential relationship by being involved in the preparation and execution of Emma
Jane's will, under which Roberts was the main beneficiary, raising a presumption that the will
was the product of undue influence. In order to rebut this presumption of undue influence,
Roberts had to prove by clear and convincing evidence (1) good faith on her part, (2) full
knowledge and deliberation of her actions and their consequences on the part of Emma
Jane, and (3) independent consent and action by Emma Jane. Not only did Roberts fail to
prove each and every element as required by Mississippi law, she failed to prove even one of
the three elements.
¶43. The chancellor was manifestly in error in his decision. For the reasons set forth
herein, this Court reverses and renders with regard to the validity of the will and deed
executed by Emma Jane Wright, which are void. We remand this case to the chancery court
for further action, consistent with this opinion, with regard to administration of the estate of
Emma Jane Wright in the absence of the will.
¶44. Reversed and remanded; remanded in part.
Notes, Questions and Problems
41

1. In the Wright case, the court emphasized that a confidential relationship was created when
Roberts started doing things like taking Emma Jane to the doctors. As a society, we want to
encourage people to help the elderly and the disabled. Will people be discouraged from
assisting persons in those populations if that assistance may lead to a fiduciary duty? When a
person with a confidential relationship receives a bequest from the person they are helping,
there is a presumption of undue influence. The purpose of that presumption is to protect
vulnerable people from being taken advantage of by their caregivers. However, people often
develop friendships with the persons who take care of them. This is especially true if they are
neglected by their relatives. Is it fair to invalidate gifts to caregivers, and give the property to
relatives who did not bother to assist the testator?
2. When deciding whether to invalid a testamentary distribution based upon undue influence,
the court starts by focusing upon the testator’s state of mind and not on the actions of the
person who received the contested bequest. A person may go to great lengths to influence
the testator. However, if the testator’s will was not a result of the influence, the will is valid.
Thus, the first thing to determine is whether the testator was susceptible to being influence.
A person’s age, mental capacity, and health are usually factors the court considers when
resolving this issue.
3. Problems
In which of the following situations is the court likely to conclude that the person was
susceptible to undue influence?
a) An 85 year old man becomes severely depressed after his wife of 57 years dies.
b) A 45 year old attorney is addicted to alcohol and prescription drugs.
c) A 37 year old woman is suffering from brain cancer.
d) A 27 year old man is permanently disabled after he is injured in a motor cycle accident.
e) A 55 year old woman with low self-esteem who desires to please people, so she can have
friends.
4. Another factor the courts consider to be relevant is the opportunity that the alleged
influencer had to influence the testator. In determining whether or not someone had the
opportunity to exert undue influence, the courts evaluate the relationship that existed
between that person and the testator. The existence of a special or confidential relationship
indicates that the person had the chance to exert undue influence.
5. Problems
42

In which of the following situations is the court likely to conclude that a confidential
relationship existed?
a) Allie took her grandmother, the testator, to pay her bills once a month and to buy
groceries once a week.
b) Shepherd mowed his seventy-eight year old neighbor, the testator’s yard for free.
c) Tyler was the pastor of the church that the testator attended.
d) William was the testator’s law school professor.

1.2.4. Fraud and Duress
Courts will invalid a provision of a testamentary trust that is obtained by fraud. The
other terms of the trust will be enforced unless the fraud pervades the entire trust instrument
or the provisions nullified by fraud are indivisible from the valid parts. In order to proof
fraud sufficient to invalidate a trust, the contestant must show that a person made a
misrepresentation with the intent to deceive the testator for the purpose of influencing the
testamentary disposition. The two types of fraud are fraud in the inducement and fraud in
the execution. Fraud in the inducement occurs when a person’s misrepresentation causes the
testator to make a disposition he would not have made if he had not been deceived. The
person making the misrepresentation must intend to deceive the testator. Fraud in the
execution happens when a person deliberately causes the testator to sign a testamentary
instrument that does not achieve the testator’s intent. See the following examples:
Example: Cory omits his son, Benjamin as a beneficiary of his testamentary
trust because his daughter, Diane, tells him that Benjamin has taken a vow of
poverty. At that time, Diane knows that her statement is untrue, but she
wants to receive a larger portion of her father’s estate. This is fraud in the
inducement because Diane’s misrepresentation caused Cory to remove
Benjamin as a beneficiary of the trust. If Cory knew that Diane’s statement
was false, he would have not omitted Benjamin. However, if Diane
mistakenly thought that Benjamin had taken a vow of poverty, no fraud
would be involved because she did not have an intent to deceive.
Example: Whitney was seventy years old, illiterate and the mother of four
sons. Whitney had her son Juan bring her the document prepared for her as a
testamentary trust for her four sons so that she could sign it. Without
43

Whitney’s knowledge, Juan inserted a clause in the trust giving himself half of
the proceeds of the trust. Whitney signed the trust document believing that it
contained the provision she had discussed with her attorney. This is fraud in
the execution because Juan’s deception caused Whitney to sign a document
that did not carry out her intent.
Duress is the equivalent to aggressive undue influence. In order to insure that the
testamentary follows his wishes, the culprit uses severe physical or emotional pressure. The
test for duress is whether the wrongdoer threatened to perform or performed a wrongful act
that coerced the testator into making a disposition that the testator would not otherwise
have made. Testamentary trusts that are the product of duress of invalid. See the following
examples:
Example: Eighty-five year old Elvira had three children. Elvira lived with
her daughter, Barbara. Elvira’s late husband Joseph left her a substantial
estate. Elvira created a testamentary trust for the benefit of her three
children. Barbara thought that she deserved to receive a bigger portion of the
trust than her siblings. Thus, Barbara told Elvira that if she did not amend
the trust instrument and grant Barbara a 50% interest in the trust, Barbara
would have her put in a nursing home. Elvira was terrified of going to a
nursing home, so she complied with Barbara’s demands. The terms of the
trust granting Barbara a 50% interest should be invalidated because they are
the product of duress.
Class Discussion Tool I.
Nova wanted to establish a trust for the benefit of his children, Nicole and Jeremy.
Jeremy convinced Nova that Nicole was abusing drugs. Nova confronted Nicole and
insisted that she enter a rehabilitation program. Nova told her that if she did not obey his
command, he would disinherit her. Nicole did not have a drug problem, so she refused to
enter a rehabilitation program. Thus, Nova executed a will stating, “I leave my entire estate
in trust for my son, Jeremy. I am disinheriting Nicole because she refuses to give up the
drugs.” Based upon the facts, what legal arguments could Nicole make to get the trust
invalidated?
Class Discussion Tool II.

44

Anna was diagnosed with breast cancer. Her doctor treated the cancer with radiation
and chemotherapy. In order to combat the side effects of the treatment, Anna got a
prescription for medical marijuana. Anna smoked three joints a day to alleviate her pain and
nausea. Anna moved in with her only child, Jean, so she could take care of her. Jean believed
in natural healing, so she put Anna on a regiment of organic food, herbal supplements and
yoga. Maggie, Anna’s best friend, told Anna that Dr. Oz said that some herbal supplements
increased the growth of cancer cells. In fact, Dr. Oz stated that some herbal supplements
might decrease the growth of cancer cells. On the day she watched the show, Maggie was
having trouble with her hearing aide. Anna refused to take the herbal supplements. Jean got
tired of fighting with Maggie over the supplements, so she started slipping them into her
food. One day, Anna saw Jean open up a capsule and sprinkle it over her pasta. After that,
Anna became convinced that Jean was poisoning her. Anna shared her concerns with
Maggie. Maggie told her pastor, Donald, that Anna was in danger. Maggie took Anna to the
church to meet with Donald. After the meeting, Anna was so grateful that she gave the
church a $500 donation. When he discovered that she had money, Donald convinced Anna
to move into an apartment complex owned by his church. Donald and the other members of
the church prevented Jean from visiting Anna. Eventually, Donald took Anna to the
church’s attorney and had her create a testamentary trust leaving all of her money in trust for
the benefit of the church. A few months later, Anna read in a magazine that Dr. Oz stated
that some herbal supplements might decrease the growth of cancer cells. Consequently,
Anna told Donald that she was wrong about Jean. Anna told him that she planned to return
home to Jean and to modify her testamentary trust to leave her entire estate in trust for the
benefit of Jean. In response, David placed guards, so that Anna could not leave the
apartment. One night, Maggie helped Anna escape from the apartment and reunite with
Jean. Anna died a few days later before she could amend her testamentary trust. Jean plans
to challenge the validity of the trust. What are her strongest arguments?

45

Chapter 2 - Creation of a Private
Trust
The two major categories of trusts are private trusts and charitable trusts. This
chapter set forth the elements necessary to create a valid private trust. The creation of
charitable trusts will be discussed in Chapter Eight. There are no magic words that the
settlor has to use in order to establish a trust. If it looks like a trust and functions like a trust,
it is a trust regardless of what the testator calls it. First, the testator must manifest the intent
to create a trust by vesting the beneficial ownership of property in a third party or in the
settlor for the benefit of another. Second, the trust instrument must name ascertainable
beneficiaries. The class of beneficiaries must be so described that some person might
reasonably be said to answer the description. Third, the trust must be funded with property.
There must be an identifiable trust res or corpus. Any form of property, including stocks,
real property, mortgage securities, easements, causes of actions, can be the corpus of a trust
as long as the settlor has an interest in the object. In general, a trust does not have to be in
writing to be valid. Thus, the settlor can create an oral trust. However, the Wills Act
mandates that a testamentary trust be in writing, and the Statutes of Fraud requires an inter
vivos trust of land to be in writing. As a result, the only trust that can be oral is a trust that
disposes of personal property. Proving the existence of such a trust is difficult because the
parole evidence rule limits the extrinsic evidence that can be admitted to prove the terms of
the trust.

1.2

Intent to Create a Trust
It is not enough just for the settlor to use the word trust. The test is whether the

settlor indicated that she intended to establish a trust relationship. Consider the following
illustrations.
(a) “I leave my lake cabin to Tresmal in trust provided that he pays his brother, Alonzo,
$50,000.” The testator has not established a trust. He has created an equitable charge. If a
testator grants property to a person, subject to the payment of a specific sum of money to a
third party, the testator has created an equitable charge. An equitable charge is similar to a
trust in that in each case the legal title to the property is vested in one person and the other
46

persons has an equitable interest in the property. However, the equitable imcumbrancer has
only a security interest in the property; the beneficiary of a trust is the equitable owner of the
property. Further, the holder of the equitable charge does not owe a fiduciary duty to the
third party. In the trust situation, the trustee owes such a duty. The relationship between the
holder of the equitable charge and the beneficiary is more in the nature of a debtor and
secured creditor. In this case, Tresmal is not holding the lake cabin or the $50,000 for the
benefit of Alonzo. Alonzo has a security interest of $50,000 in the lake cabin. Thus, if
Tresmal fails to pay Alonzo the $50,000, Alonzo can file suit to force Tresmal to sell the lake
cabin to get the money to pay him the $50,000. If a trust was created, Alonzo’s remedy
would be to sue Tresmal for a breach of his fiduciary duty.
(b) “I leave my house located at 215 Chestnut Street in trust to LaNitra with the hope that
she will provide her sister, Kaylan, with a place to live during her lifetime.” The testator has
not established a trust. The testator lacked the intent to create a trust because she did not
impose legally enforceable duties on LaNitra. She has made an outright gift of the house to
LaNitra. Kaylan has no interest in the house. This is not a legally valid trust because the
language “with the hope” is precatory language which creates a presumption that the testator
intended to imposed only an unenforceable moral obligation on LaNitra. Kaylan can
overcome the presumption by presenting clear and convincing evidence that the testator
intended for LaNitra to have a legal obligation to let Kaylan live in the house. Courts have
held that words like hope, wish and desire are precatory words.
(c) “I leave $400,000 to Emma in trust provided that she repays me in two years.” The
testator has not established a trust. Her intent was to create a debtor-creditor relationship
between herself and Emma. A trustee is obligated to hold specifically defined property for
the benefit of a third party. The trust property must be kept separate from the trustee’s own
funds. A debt involves a personal obligation to pay a sum of money to another. The crucial
factor in distinguishing between a trust relationship and an ordinary debt is whether the
recipient of the assets is entitled to use the property as his own and to comingle the property
with his own assets. In this case, Emma has no obligation to use the money for the benefit
of a third party. Her only obligation is to repay the money. Thus, instead of owing a fiduciary
duty to a third party, Emma’s sole duty is to repay the testator.
(d) “I leave $300,000 in trust to Bernie to pay the income to Jeremy for life and upon
Jeremy’s death to divide the principle between Jeremy’s surviving children.” Testator has
47

established a trust. Bernie is not permitted to use the money and repay it. Thus, this is not an
equitable charge or a debt. Moreover, Bernie has a mandated duty to abide by the terms of
the trust with regards to Jeremy and Jeremy’s children. It is clear that the testator intended
Bernie to manage the trust funds for the benefit of those persons.

Marzahl v. Colonia Bank and Trust Company, 364 A.2d 173
BOGDANSKI, Associate Justice.
This appeal arises from an action brought by the plaintiff against the defendant bank
as executor of the estate of the plaintiff's deceased mother. The plaintiff sought damages
alleged to have resulted from the mother's failure to distribute to the plaintiff a portion of
the income received by the mother from a testamentary trust established in the will of the
plaintiff's father. On motion by the defendant, and after having considered an affidavit and a
counter-affidavit filed by the parties, the court granted summary judgment for the defendant.
From that judgment, the plaintiff has appealed, claiming that the court erred in concluding
that the fourth article in the will did not require the decedent mother to disburse portions of
the trust income received by her for the plaintiff's maintenance, health and comfort.
The affidavits submitted by the parties to the trial court revealed that no material
facts were in issue. See Rathkopf v. Pearson, 148 Conn. 260, 170 A.2d 135. W. Marnahl, the
plaintiff's father, died on July 8, 1967, leaving a will in the fourth article of which he created a
trust from which the income and principal were to be disposed of as follows: ‘My Trustees
shall pay in income to my wife, Margaret, during her lifetime in quarter annual payments or
in more frequent payments in the discretion of my Trustees, together with such sums out or
(sic) principal as my Trustees in their sole discretion shall deem proper from time to time for
her suitable maintenance, health and comfort and for the suitable maintenance, health and
comfort of my daughter, Anne.’
The plaintiff contends that article four of the will established the mother as a trustee
of a portion of the income received by her, and subjected her to a fiduciary duty to use that
portion for the maintenance, health and comfort of the plaintiff. She argues that the
circumstances surrounding the testator when the will was executed evidenced his intent to
create such a trust; that that intent would become manifest in the language of the fourth
article if a comma were to be inserted after the phrase ‘from time to time’; and that such a
comma should have been supplied by the court since punctuation should not be allowed to
obscure the true intent of a testator.
48

One of the basic elements necessary for the creation of a trust is a manifestation of
intention to create it. Effect must be given to that intent which finds expression in the
language used. Fidelity Title & Trust Co. v. Clyde, 143 Conn. 247, 253, 121 A.2d 625; Conway v.
Emeny, 139 Conn. 612, 618, 96 A.2d 221. In Peyton v. Wehrahane, 125 Conn. 420, 425, 6 A.2d
313, 315, citing Loomis Institute v. Healy, 98 Conn. 102, 114, 119 A. 31, we stated: ‘(W) hen
property is given absolutely and without restriction, a trust is not lightly to be imposed, upon
mere words of recommendation or confidence.’ The plain and unambiguous language used
by the testator in the fourth article of his will does not give the slightest indication that he
intended that his wife be subjected to a fiduciary duty to share the trust income with her
daughter. The plaintiff is mentioned only with respect to the provision for payment of
principal.
Moreover, even if we assume, arguendo, that the insertion of a comma after the
phrase ‘from time to time’ would render the provision susceptible to the interpretation urged
by the plaintiff, the circumstances surrounding the testator at the time the will was executed,
as disclosed by the plaintiff's counter-affidavit, afford no basis for making such an insertion.
Punctuation may be inserted or deleted where a provision does not lend itself to a clear
interpretation of the testator's intent and when ‘the result would be a clear and sensible
statement, not out of accord with other provisions of the instrument and the testator's intent
thereby manifested.’ Simmons v. Simmons, 99 Conn. 562, 568, 121 A. 819, 821. The counteraffidavit points out that when the will was executed, the father knew that the plaintiff was
almost destitute, and that he also knew that his wife was well provided for. In his will the
testator provided for the plaintiff during the lifetime of her mother by allowing the trustees
the discretion to provide portions of the principal of the trust for the maintenance, health
and comfort of the plaintiff. It appears, however, that the plaintiff never requested the
trustees to pay over any of the principal. Upon her mother's death, the entire principal was
to be given to the plaintiff free from any trust. The will further provided that all property
would go to the plaintiff in the event her mother predeceased her father. Article four lends
itself to a clear interpretation of the testator's intent with respect to the method of providing
for his wife and daughter after his death. Nothing suggested by the plaintiff's affidavit is
inconsistent with that expressed intention.
If a comma were to be inserted, the result would not be a ‘clear and sensible
statement’ and would be ‘out of accord with other provisions of the instrument.’ Simmons v.
49

Simmons, supra. The clarity which pervades this will would be muddled by the question of
whether the phrase ‘for the suitable maintenance, health and comfort of my daughter, Anne’
referred to the income as well as to the principal of the trust. Moreover, the sixth article of
the will nominates two named trustees ‘as Trustees of the trust herein created.’ To hold that
the testator intended to create still another trust and to nominate another trustee would be
completely out of accord with that provision.
The trial court's conclusion that the fourth article of the will could not be construed as
establishing the decedent mother as the trustee of a trust for the benefit of the plaintiff
cannot be disturbed.
There is no error.

In re Estate of Brooks, 579 P.2d 1351.
DORE, Judge.
This is an appeal from a King County Superior Court ruling that certain language in a
will created a trust.
Eloise Brooks, a divorced woman, died September 21, 1974, survived by her two
minor children. She left a will dated March 14, 1974 which named her sister, Sharon Morton,
as executrix. The will left certain specific property to her two children and appointed Sharon
Morton to be guardian and have actual custody of the children. Paragraph VI of the will
provided:
I hereby give, devise, and bequeath unto my sister, Sharon Nelson Morton, all the
rest, residue and the remainder of my estate, for her to use in her own discretion and
in whatever manner she deems appropriate for the benefit of my children.
The will was admitted to probate October 11, 1974 and proceedings ensued normally
until August 19, 1976 when the natural father moved, on behalf of the children, for an
accounting of a trust allegedly created by paragraph VI. Although Sharon Morton contended
that no trust had been created the court found that all property passing under paragraph VI
of (the will) is held in trust for the benefit of said minor children and further that there is a
conflict of interest for the Executrix to serve also as Trustee . . . Thereupon the court
appointed a new trustee and ordered him to make an accounting.
It is well established that in construing a will a court must attempt to give effect to
the intent of the testator. Matter of Griffen’s Estate, 86 Wash.2d 223, 543 P.2d 245 (1975). The
will should be construed as a whole. In re Estate of Price, 75 Wash.2d 884, 454 P.2d 411
50

(1969). Where there is room for construction, that meaning will be adopted which favors
those who would inherit under the laws of intestacy, In re Estate of Price, supra; In re Lambell’s
Estate, 200 Wash. 200, 226, 93 P.2d 352 (1943), and a sole surviving natural heir who is a
minor is favored. Cotton v. Bank of California, 145 Wash. 503, 216 P. 104 (1927).
Before a trust will be found to exist, there must be a clear manifestation of an intent
to create a trust and not to do something else. Hoffman v. Tieton Methodist Church, 33 Wash. 2d
716, 207 P.2d 699 (1949). A testamentary trust will not be declared, unless such a trust is
clearly intended by the testator. In re King’s Estate, 144 Wash. 281, 257 P.848 (1927). It has
generally been held that an imperative command to dispose of the property for the benefit
of another is required to create a testamentary trust. In re Morton’s Estate, 188 Wash. 206, 61
P.2d 1306. Precatory words are not enough to create a trust and if the grantee has discretion
to use the property for herself the court will not find a trust. Lanigan v. Miles, 102 Wash.82,
172 P. 894 (1918).
The issue is whether Eloise Brooks manifested an intention to impose duties upon
Sharon Morton which are enforceable in the courts. See Rest. (Second) Trusts, s 25. If so,
there is a trust.
The language of paragraph VI which conveyed the estate to Sharon Morton “for her
to use . . . for the benefit of my children” is strongly suggestive of a trust. Other language in
the clause, however, suggests that Sharon Morton was to hold the property free and clear
with the option to comply with the wish of the testator only if she desired to do so. When
necessary, extrinsic circumstances may be considered as an aid in determining intention. In re
Mac Adam’s Estate, 545 Wash.2d 527, 531, 276 P.2d 729 (1954). In re Quick’s Estate, 33
Wash.2d 568, 573, 206 P.2d 489 (1949). Restatement Second, Trusts s25, comment b sets
forth circumstances pertinent to this inquiry:
In determining the intention of the settlor the following circumstances
among others are considered: (1) the imperative or precatory character of the
words used; (2) the definiteness or indefiniteness of the property; (3) the
definiteness or indefiniteness of the beneficiaries or of the extent of their
interests; (4) the relations between the parties; (5) the financial situation of
the parties; (6) the motives which may reasonably be supposed to have
influenced the settlor in making the disposition; (7) whether the result
reached by construing the transaction as a trust or not a trust would be such
51

as a person in the situation of the settlor would naturally desire to produce.
In re Mac Adam's Estate, supra; In re Quick's Estate, supra.
Considering these circumstances along with the language of the will we believe that a
trust was intended. The language “for her to use . . . for the benefit of my children” is more
imperative than precatory. Although Morton was given apparent uncontrolled discretion in
using the funds for the benefit of the children, this fact neither defeats the trust nor gives
Morton unlimited power. See Rest. Second Trusts, s 187, comment j.; In re Sullivan’s Will, 144
Neb. 36, 12 N.W.2d 148, 150-1 (1943). Other considerations control. The property and
beneficiaries are definite. See In re Hochbrunn’s Estate, 138 Wash. 415, 244 P. 698 (1926). Most
significant is the readily ascertainable motive of Eloise Brooks. By her will she was providing
for the welfare of her children, not for her sister. Sharon Morton was given the property of
the estate, not for her own use, but to use in raising the two children. It is inconceivable that
the testator intended Sharon Morton's discretion to include the discretion not to use the
property to benefit the children. We therefore adopt the construction most favorable to the
children, In re Estate of Price, supra; In re Lambell's Estate, supra; Cotton v. Bank of California, supra,
and concludes there was a trust. Cf. Rest. Trust Second s 25, comment Illustration 6. Duties
were imposed on Sharon Morton which are enforceable in the courts.
However, we feel that the trial court erred in removing Sharon Morton as trustee.
There is no doubt that Brooks intended Morton, who was to be physically raising the
children, to use the money as she saw fit to benefit the family unit of Morton and the two
children. Absent a showing of an abuse of discretion or a breach of fiduciary duty we hold it
was error to remove Sharon Morton as trustee and we reverse the order of the trial court
insofar as it removed Sharon Morton as trustee.
Affirmed in part; reversed in part.
Notes, Questions and Problem
1. In order to ascertain the testator’s intent with regards to the creation of a trust, courts
often look to the plain language of the testamentary instrument. Although it is not necessary
for the testator to use the word trust, the use of that word usually leads to the conclusion
that the testator intended to create a trust. If the language of the testamentary instrument is
unhelpful, courts will admit extrinsic evidence to determine the testator’s intent. That
evidence frequently includes the testimony of disinterested parties.
2. It has been noted that the use of precatory rather than mandatory language does not
52

create a trust. Nonetheless, that is not the end of the story. The court may permit a trust to
be established from precatory language if the words taken in connection with other portions
of the will and in light of all the circumstances indicate that the testator intended to place a
legal obligation on the potential trustee. What factors should be considered to determine if a
precatory trust was intended?
3. Problems.
In which of the following circumstances did the testator intend to create a trust.
a). Geoff had two children, Alice and Denise. Denise was permanently disabled. Geoff’s will
contained the following provision: “I leave half of my estate to my daughter Alice. I leave
the other half in trust for the benefit of my daughter, Denise. Alice can serve as trustee if she
promises to take care of her sister.”
b). When he was a young man, Steven inherited a house from his grandfather. Steven wanted
to make sure that the house remained in his family. Steven’s will contain the following
language: “I leave my grandfather’s house to my son, John in trust for himself and my two
other children, Nancy and Peter, provided that John promises to pay $4,000 a year to the city
property tax department.”
c). Angela had seven minor children. In her will, Angela stated, “I leave my entire estate to
my oldest son, Benjamin in trust in exchange for his promise to take care of his younger
siblings.”
d). Greta did not have any children, but she was close to her nieces and nephews. In her will,
Greta stated, “I leave my entire estate to my sister, Brenda, in trust provided that she pays
each one of my living nieces and nephews $400 per month.”
e). Brian and Cynthia were best friends. Brian was the Godfather to Cynthia’s daughter
Briana. In his will, Brian stated, “I leave the residuary of my estate to Cynthia in trust for my
Goddaughter, Briana. Before she assumes the role as trustee, Cynthia should repay the
$100,000 that she owes me.”

2.2

Requirement of Trust Property
A valid trust cannot be created without trust property which is referred to as res. If

the trust is created using a deed of trust, the property must be delivered to the trustee. Any
interest in property can serve as the res of a trust. Consider the following examples.
53

a) On the beneficiary designation on her pension plan Carmen wrote “To Rodney Gates, in
trust, for my children, Peter, Paul, and Mary.” This transaction creates a trust because any
right to receive benefits under a pension plan can serve as trust property.
b) Stephanie created a trust for the benefit of her minor child, Yasmine. The trust consisted
of a house Stephanie will inherit under her father, Clinton’s will and the profits she
anticipates earning next month when she sells her antique bedroom set. This transaction
creates a valid trust because the profits Stephanie anticipates making can serve as trust
property because she actually owns the antique bedroom set. However, the house cannot
serve as trust property because she does not yet have an interest in it. She only has an
expectancy because Clinton can change his will at any time.

Edwards v. Edwards, 459 P.2d 422
PEARSON, Judge.
Plaintiff appeals from a dismissal of a declaratory judgment action in which he
sought to invalidate the trust provision of the last will and testament of Lonnie Leota
Edwards, deceased.
The facts were not disputed. The matter was brought to issue by plaintiff's motion
for summary judgment. Both counsel agreed that only issues of law were involved.
Lonnie Leota Edwards died testate in Tacoma, Washington on February 26, 1963.
Her husband, Leon R. Edwards, was appointed executor of her estate. Paragraphs 3 and 4 of
her will, which are here under attack, provided:
I give, devise and bequeath to my husband, Leon R. Edwards, a life estate in
all the rest, residue and remainder of my estate, subject to the conditions and
limitations set forth herein, of every kind, nature and description and
wheresoever situated, or which I may die seized, for his own use during his
life without bond and without liability for impeachment for waste, provided,
however, that in the event he is unwilling or physically unable to manage and
administer said estate, then and in that event it is my desire and intent that all
of my estate then in his possession shall be placed in trust with the Puget
Sound National Bank * * *
In the event my husband, Leon R. Edwards, should perish with me in a
common disaster or as the result of a common disaster or should die within
six months following my death, or upon the subsequent death of my
54

husband, I give, devise and bequeath all the rest, residue and remainder of
my estate not specifically devised herein to the PUGET SOUND
NATIONAL BANK, Tacoma, Washington, TRUST DEPARTMENT, to be
held in trust for the benefit of my grandchildren, SHARON EDWARDS
KNAPP,

St.

Helens,

Oregon,

GRETCHEN

EDWARDS,

JANE

EDWARDS, and WENDY SUE EDWARDS, of Bellevue, Washington, and
my son, MARION C. EDWARDS, for the following uses and purposes and
upon the following terms and conditions.
The plaintiff, Marion C. Edwards, is the son of he deceased, Lonnie Leota Edwards,
and brought this action individually and as guardian ad litem for his children, all of whom
are beneficiaries of the aforementioned trust. The named defendants were Leon R. Edwards,
individually and as executor, and the Puget Sound National Bank, named trustee in the will.
Plaintiff claims that no valid trust was created by the provisions of this will because
the trust would not come into existence until the life tenant died or became ‘unwilling or
physically unable to manage and administer (the) estate.’
Plaintiff asserts that a trust is not and cannot be created without the actual transfer
of legal title to the trustee as of the date of death of the trustor. He seeks to have the trust
provisions invalidated, so that the remainder after the life estate passes by intestacy.
The trial court denied this relief, upheld the trust, dismissed the action, and allowed
both defendants' costs and attorney's fees.
To simplify the first legal problem presented by the appeal, we state the issue: Where
A devises her estate to B for life, with power to consume and at his death the remainder to C
in trust for D, is a valid trust of that remainder established?
Plaintiff contends that it is invalid because (1) title to the remainder does not reach
the trustee at the time of testator's death but is postponed until the intermediate estate
terminates, and (2) the power to consume in the life tenant and the words, ‘all of my estate
then in his possession’ makes the trust res so uncertain and indefinite as to render the trust
invalid.
To understand the first contention is to reject it. We are told, in effect, that if testator
had used these words: To C in trust for D, subject to a life estate in B, the trust would stand,
but because she used these words: To B for life and at his death to C in trust for D, the trust
is invalid.
55

We are told that the reason for this distinction is that in the former case legal title
reposes immediately in the trustee while in the latter it awaits the termination of the
intermediate estate. Thus, testator has not made a present and unequivocal disposition of
both legal and equitable ownership at her death, which is one of the requirements of an
express trust.
The rule relied upon by plaintiff is stated in 54 Am.Jur. Trusts s 34 (1966) at 45:
It is essential to the creation of an express trust that the settlor presently and
unequivocally make a disposition of property by which he divests himself of
the full legal and equitable ownership thereof. He may make himself the
trustee or one of the trustees, thus retaining the legal title in whole or part, or
by making himself the beneficiary or one of the beneficiaries of the trust, he
may retain the equitable ownership in whole or part, but he cannot retain the
full legal and equitable ownership. The legal title must be definitely reposed
in the trustee, whether he is the trustor or another. Such present and
unequivocal disposition of the property in trust must constitute an actual
carrying out and execution of the settlor's intention to create a trust by some
proper transaction or mode, and it does not suffice to create a trust that he
merely intends or manifests an intention to create a trust in the future or
conditionally directs or gratuitously promises a disposition of property in
trust in the future.
This rule and the cases cited as authority for it involve inter vivos trusts. The issue in
many of them was whether or not the trust should fail as an attempted testamentary
disposition, without compliance with the statute of wills. Others were cases where the settlor
had declared a trust but had conveyed no property to the trustee on which a trust could
operate. A testamentary trust is distinguishable. Such a trust looks to the future and does
not, as of the time of its execution, divest the trustor of his property or any interest therein
or vest a present property interest in the beneficiaries. Johnson v. Weldy, 79 N.D. 80, 54
N.W.2d 829 (1952).
We believe that plaintiff's attempted application of that rule to a testamentary trust
and to the trust in question is erroneous.
Assuming arguendo that a valid testamentary trust must At death divest the trustor
of full ‘legal and equitable ownership,’ it is our view that testatrix intended to and did
56

accomplish that end in this case. To ascertain the type of interests which came into being at
her death, we look to the law of future interests.
In the case of In re Estate of Gochnour, 192 Wash. 92, 93, 72 P.2d 1027 (1937) the will
under consideration provided:
‘I give, devise and bequeath all my property, owned by me at the time of my
death, both real and personal * * * to my husband, Jacob B. Gochnour, * * *
with full power to alienate the same for his use and benefit during his natural
life, and I direct that at the death of my said husband, Jacob B. Gochnour, all
of my said property, real and personal, or the proceeds thereof, then
remaining, go and be distributed to my nieces and sister * * *.’
At 93, 72 P.2d 1027 the court stated:
By the terms of the will, under the great weight of authority, Jacob B.
Gochnour takes a life estate, with vested remainder to the decedent's sister
and nieces, notwithstanding his absolute power of disposal during his
lifetime.
Admittedly the remainder given in that case was not placed in trust. However, the
interest created in the remaindermen is identical with the interest placed in trust in the case
at bar. Accordingly, we hold that testatrix created a life estate and a future interest
denominated a vested remainder, both interests of which came into being at the time of her
death.
In Shufeldt v. Shufeldt, 130 Wash. 253, 227 P. 6 (1924), at 262 P. at 9 the court stated:
If the postponement of the payment of the legacy or the enjoyment of the
devise is for the purpose of letting in intermediate estates only, then the
remainder shall be deemed vested at the death of the testator and the legatees
and devisees are to be determined as of that date, for under those
circumstances no futurity is annexed to the substance of the conveyance, but
only to the time of its enjoyment.
This interpretation is consistent with Restatement (Second), Trusts s 77 (1959),
where Illustration 4 at 198 provides:
4. A, the owner of Blackacre, transfers Blackacre to B for life, remainder to C
and his heirs and directs that C hold his interest in trust for D. C holds a
vested remainder in trust for D.
57

Plaintiff next contends that the trust should fail because the trust res is too indefinite
and uncertain.
The creation of a valid testamentary trust requires (1) the intention by the testator by
will to create a trust, (2) designation of the trust property, and (3) the designation of
beneficiaries, and the terms on which the trust is to operate.
Plaintiff contends that the second element of a valid trust is not satisfied because the
term ‘all of my estate then in his (Leon R. Edwards') possession’ is too uncertain a
designation of the trust res. Furthermore, where there is no ‘liability for impeachment for
waste’ it is uncertain that there will ever be a trust estate. Therefore, the trust should be held
invalid. We reject this argument.
1 G. Bogert, Trusts and Trustees s 112 (2d ed. 1965), at 571 describes the following
as proper subject matter of trust estates:
The trust property may consist of an interest which is absolutely vested, or
one which is vested but subject to being divested, as in the case of gifts on
condition subsequent or determinable interests. It may be a contingent
interest which is not to vest until the happening of a condition precedent or
is uncertain as to the person to take.
The res may be a present estate or interest, or one entitling the trustee to
possession and enjoyment at a future date, as in the case of reversions and
remainders.
On this point, we find in 1 A. Scott on Trusts s 74.1 (3d ed. 1967) at 679:
Whatever may be the subject of an executed gift may be given in trust; and a
person can declare himself trustee of whatever he can give to another in
trust. Whatever interest he can devise or bequeath, he can devise or bequeath
in trust. See also United States Trust Co. of N.Y. v. Commissioner of Int. Rev., 296
U.S. 481, 56 S.Ct. 329, 80 L.Ed. 340 (1936).
Again, in Scott on Trusts, Supra, s 76 at 685:
A trust can be created although the parties do not know precisely what the
subject of the trust is, if it can be ascertained from circumstances existing at
the time of the creation of the trust. Thus a trust created by will of the
residue of the testator's estate is of course valid although the amount of the
residue cannot be ascertained until the amount of his assets and of his
58

liabilities has been determined.
Speaking of the uncertainty created by the power to consume by a life beneficiary,
Scott states:
A trust does not fail for uncertainty of the subject matter even though the life
beneficiary is entitled to receive so much of the principal as he may demand
and it is therefore uncertain how much will be left for the remainderman.
Scott on Trust, Supra, s 76 at 686.
Restatement (Second) Trusts, s. 77 (1959) at 197 provides:
An interest in a thing may be held in trust although the interest is not the
complete property in the thing.
c. Future Interests. The interest may be a future interest either vested or
contingent. * * * The interest may be contingent as to its extent.
Plaintiff relies on Wilce v. Van Anden, 249 Ill. 358, 360, 94 N.E. 42, 43 (1911).. In that
case the ‘entire part or portion of my estate remaining after the death or remarriage of my
said wife * * *’ was placed in trust. The court apparently held that the power to consume by
the wife (life tenant) rendered the bequest void for uncertainty as to subject matter.
However, we note that two later Illinois cases, if not expressly overruling that
decision, did so by implication. In Burke v. Burke, 259 Ill. 262, 267, 102 N.E. 293 (1913) the
wife was given a life estate with the power to sell any of the estate in order to supply her
comforts and necessities. The remainder over was placed in trust. In upholding the validity
of that trust, the court distinguished the Wilce case by commenting that it was not the
uncertainty created by the power to consume which rendered the trust void, but another
provision of the trust which placed discretion in the trustees ‘to give to the brothers and
sisters of the testator such portion of the trust fund as they might think best and devote the
rest to charity.’
The same distinction is made in Dean v. Northern Trust Co., 266 Ill. 205, 107 N.E. 186
(1914) where the court upheld the validity of a trust of a remainder following a life estate
with power to consume in the life tenant.
The case of Burke, supra, gives the rationale which we believe should control the case
before us, 259 Ill. at 268, 102 N.E. at 295:
Every kind of vested right which the law recognizes as valuable may be
transferred in trust. Perry on Trusts, ss 67, 68. The law is well settled that an estate
59

may be given to a person for life, with power to sell and convey the fee, and that
a remainder may in such case be limited in fee after the termination of the life
estate. * * * A remainder so limited is vested, though subject to be defeated by
the exercise of the power by the life tenant. The uncertainty as to the amount of
the reduction because of the disposition of the estate, or a part of it, for the
comfort or necessities of the life tenant, and the consequent uncertainty as to the
amount of the estate which may be undisposed of, does not render the
remainder contingent. * * *
We consider this rule applicable to the case at bar.
This precise issue has not been decided by the Supreme Court of this state. We
believe, however, that our determination of the validity of the trust is consistent with
previously enunciated principles of future interest in property. In re Estate of Gochnour, Supra.
In the case of In re Estate of Ivy, 4 Wash. 2d 1, 3, 101 P.2d 1074, 1075 (1940) the court
was also faced with a community estate placed in trust for the surviving spouse with the
power to consume as much of the corpus as ‘the trustors saw fit to withdraw’ together with
the right to amend or revoke the trust agreement. Upon the death of the survivor, the estate
was to be distributed to the remaindermen. Subsequent to the husband's death, the surviving
trustor amended the trust by eliminating the remaindermen and making herself the sole
beneficiary of the trust.
In determining that the power to consume and revoke did not change the character
of the remainder so as to save the remaindermen from the inheritance tax laws, the court
stated at 8, 101 P.2d at 1077.
While there is confusion among the authorities in drawing a distinction between a
vested remainder and a contingent remainder, the rule is settled in this state that a life estate,
with the right to invade the principal, and remainder over, creates a vested remainder and
not a contingent remainder.
While it is not essential to characterize the type of estates created by testator's will, it
seems clear that she created a life estate in her husband of all of her estate with the power to
consume and the remainder to the Puget Sound National Bank in trust for her son and
grandchildren.
Under the rationale of the foregoing decisions, she granted to the trustee a vested
remainder, notwithstanding the power to consume. Shufeldt v. Shufeldt, Supra; In re Estate of Ivy,
60

Supra.
We believe that such a future interest is and should be the proper subject matter of a
testamentary trust.
In considering instruments creating trusts, the sole object of the courts is to ascertain
the purpose of the settlor and to effectuate the purpose insofar as it is consistent with rules
of law. Old Nat’l Bank & Union Trust Co. etc. v. Hughes, 16 Wash. 2d 584, 134 P.2d 63 (1943);
Seattle First Nat’l Bank v. Crosby, 42 Wash.2d 234, 254 P. 2d. 732 (1953)..
In the case at bar, the intentions of the testator are clear. To declare an intestacy
under these circumstances solely because the extent of the trust res is uncertain is in our
judgment unsound. It may be that no assets will be available to make the trust operative. We
do not deem this obstacle of sufficient importance that we should frustrate the testator's
intention as to the remainder, if any, by declaring an intestacy. The presumption against
intestacy is particularly strong where the subject of the gift is the residuary estate. In re Estate
of Quick, 33 Wash.2d 568, 206 P.2d 489 (1949).
Plaintiff also seeks to have the trust invalidated by urging that several of its
provisions relating to the administration and distribution are vague and ambiguous. We have
reviewed the will in its entirety and agree with the defendant executor that the terms of the
trust are workable. In any event, if the trustee finds it necessary, it may at any time apply to
the court for assistance. Old Nat'l Bank & Union Trust Co. etc. v. Hughes, Supra.
Plaintiff also complains of the award of $150 as attorney's fees to the defendant,
Puget Sound National Bank, but does not complain of the award in favor of the executor.
We believe the award to the defendant bank was within the discretion of the trial court. This
case was in the nature of a will contest.
RCW 11.24.050 provides that reasonable attorney's fees may be assessed against the
contestant where the will is upheld, unless the contestant acted with probable cause and in
good faith.
The trial court undoubtedly reasoned that since the defendant, Puget Sound
National Bank, had not accepted its trust duties, and would not be required to do so until
the intermediate estate terminated, it was not a necessary party to the litigation.
Consequently, the plaintiff did not act with probable cause and in good faith in its action
against the bank. We are unable to say that the trial court abused its discretion in awarding
attorney's fees under these circumstances.
61

Accordingly, the judgment of the trial court is affirmed, with costs on appeal
awarded to respondent
Notes, Questions, and Problems
1. The property used to fund a trust must be in existence or ascertainable at the time that the
trust is created. More specifically, the testator’s interest in the property must be in existence
or ascertainable when he attempts to create the trust.
2. A will does not speak until death. Thus, at the time the will is executed that testator does
not have to own the property he or she seeks to devise in the will unless he or she intends
that property to be the corpus of a testamentary trust. For example, at the time she executes
her will, Betty anticipates inheriting a house from her mother. Betty can devise that house in
her will to Veronica. If Betty has not inherited her mother’s house when she dies or if she
inherits the house and sells it before she dies, the house does not become a part of her
estate. Thus, under the doctrine of ademption by extinction, Veronica would not inherit the
house. However, the devise would not invalidate Betty’s will. Since a testamentary trust is
not intended to take effect until the testator’s death, why should the law mandate that such a
trust contain property in order to be valid? Should the trust be valid when created and fail
for lack of property at the time that it comes into existence?
3. A testator does not have a property interest in a life insurance policy because the proceeds
are not payable until the testator’s death. Thus, life insurance proceeds cannot be the res of a
testamentary trust. Nonetheless, those proceeds can be the property of an inter vivos trust.
All the testator has to do is to create a revocable inter vivos trust and name that trust as the
beneficiary on the life insurance policy. A life insurance policy can be the res of an inter
vivos trust even though the insured person reserves the right to change the beneficiary on
the policy.
4. Problems
In which of the following cases is there a valid trust res?
a). George was diagnosed with cancer. The doctor told him that the treatment would make
him sterile. Since he wanted children, George stored some of his sperm in the Fertility
Sperm Bank. While he was under going treatment, George executed a will that stated, “I
leave my sperm to the Fertility Sperm Bank in trust for my girlfriend, Kayla.”
b). While he was riding his bicycle, Peter was hit by a car driven by Jenny. As result, Peter
suffered severe injuries. Peter filed a lawsuit against Jenny. While the suit was pending, Peter
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executed a will that contained the following language: “I leave any monetary judgment I
receive from my lawsuit against Jenny Armstrong to my brother, Marshall, in trust for my
son, Jacob.”
c). Jack, a compulsive gambler, is convinced that he is going to some day win the lottery.
When the mega million lottery reached four hundred million dollars, Jack purchased $10,000
worth of lottery tickets. The day before the lottery drawing Jack executed a will containing
the following provision: “I leave my lottery tickets purchased on June 7, 2011 to my Aunt
Jean in trust for my cousin, Timothy.”
d). Patrick accepted a job at a large retail store. As a part of his benefit package, Patrick will
receive stock options after he has worked at the store for ninety days. A month after he
started working at the store, Patrick executed a will stating “I leave my stock options to
Stephanie in trust for Trenton.”

2.3

Necessity of Trust Beneficiaries
There must be ascertainable beneficiaries who have the authority to enforce the

terms of the trust by suing the trustee if he violates any of the fiduciary duties. The
beneficiaries do not have to be specifically enumerated in the trust instrument, but they must
be readily identifiable. In some cases, the beneficiaries may be persons who are not yet born.
There must be a beneficiary or a class of beneficiaries indicated in the trust that is able to
come into court and claim the benefit of the bequest. Consider the following examples.
a) “I leave $150,000 in trust to Carlos for the benefit of any of my friends who Carlos thinks
is worthy to have the money.” The testator has not created a valid trust because Carlos is
given too much discretion to choose the beneficiaries of the trust. Even if the trust had
obligated Carlo to hold the money for the benefit of the testator’s friends, the trust would
still fail because the term “friends” is too broad. Carlos is not given enough guidance to
identify testator’s friends. Thus, the trust does not have ascertainable beneficiaries.
b) “I leave $35,000 in trust to Ronnie for the benefit of my snake, Jake.” The testator has not
created a valid trust. The trust has an ascertainable beneficiary, Jake. Nonetheless, Jake does
not have the ability to hold the trustee accountable. The main reason the law requires a trust
is to have beneficiaries is to ensure that there is someone to whom the trustee owes fiduciary
duties. In this case, if Ronnie misappropriates the money, he has no consequence. Since this
is a testamentary trust, the settlor will be dead when the trust takes effect. Thus, the only one
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who could hold Ronnie accountable is Jake, and he is unable to file a lawsuit. In Chapter
Three, we will discuss the options available to the testator if she wants to make sure that Jake
is protected.
c) “I leave $375,000 in trust to Paul for the benefit of the members of my church choir.”
The testator has not created a valid trust. Whenever there is a transfer in trust for members
of an indefinite class of persons, no enforceable trust is created. In this case, the class,
“members of my church choir” is too indefinite because membership in the choir changes.
This is different from leaving money in trust for a class that consists of “sisters” because that
title refers to a finite class of people.
d) “I leave $50,000 in trust to Anne for the benefit of my nieces and nephews. The testator
has created a valid trust because the class of nieces and nephews is readily identifiable.
Regardless of the number of persons that may answer to the description, the trustee has a
way of determining if the person has the correct blood relationship to the testator.”

In the Matter Estate of Boyer, 868 P.2d 1299
OPINION
DONNELLY Judge.
Appellants, George A. Morrison, Roger Brastrup, and Lyle Speer, appeal from a
judgment determining certain provisions of the Last Will and Testament of A. James Boyer,
deceased, were without legal effect, and ordering that Morrison be removed as personal
representative of the decedent's estate. We discuss whether the trial court erred in
determining that the provisions of the decedent's will were insufficient to create a
testamentary trust.
FACTS
The decedent died on September 23, 1991, at the age of ninety-one years. On
September 7, 1991, sixteen days before his death, he executed a last will and testament (the
will). An order approving Morrison's petition for admission of the will to informal,
unsupervised probate was entered on October 3, 1991, and Morrison, an attorney and
personal friend of the decedent, was appointed as personal representative of the decedent's
estate pursuant to the provisions of the will. The 1991 will of the decedent expressly revoked
all prior wills made by him, including a will executed in 1977.
On November 20, 1991, the decedent's intestate heirs, Edward G. Boyer, John R.
Boyer, and Mildred B. Harbaugh (Appellees), filed a petition to set aside the will, alleging
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that it was the product of undue influence and fraud; that the will and purported
testamentary trust provisions were invalid; and that Morrison's act of preparing the will and
designating himself as both a trustee and beneficiary violated rules governing the practice of
law. Appellees' petition requested that the trial court declare the decedent's will to be void,
that they be declared the decedent's intestate heirs, and that they be awarded attorney fees.
Appellees subsequently moved for summary judgment, asserting that the distributory
provisions of the will were legally insufficient, and that the Second and Third Articles of the
will were invalid. These Articles stated:
SECOND: I give, devise and bequeath all of my estate and property, real, personal
and mixed, wheresoever situated, of which I may be possessed, or to which I may be
entitled at the time of my death, to my Trustee, George A. Morrison, in Trust.
THIRD: I direct my Trustee to distribute all of my estate according to my
instructions which I may give to him from time to time in my own handwriting or
otherwise, but nonetheless signed or initialed by me. In the event, by whatever
circumstance, I fail to leave such instructions to my Trustee, then I direct my Trustee
to distribute my estate according to his discretion, bearing in mind the many
conversations we have had together in which I have named those who are the
objects of my generosity.
The motion for summary judgment was accompanied by Appellants' response to
Appellees' request for admissions. The response admitted that the decedent was a client of
Morrison's and that Morrison had drafted the decedent's will; that apart from the will itself,
“no written trust agreement executed by [the decedent] ... nam[es] ... Morrison as trustee”;
and that there are no written instructions from the decedent to Morrison “of the kind
referred to in the [Third] Article of the last Will,” except for the will itself. Morrison's
response to the request for admissions also stated that “I do have notes and notes of Donald
Hardesty regarding [the decedent's] wishes as to who is to receive his estate.”
Appellants' response to the motion for summary judgment contended that the trust
created by the will and the will itself were valid because the beneficiaries were ascertainable;
that the will was sufficient to give Morrison a power of appointment, thus permitting him to
select the persons who should be the beneficiaries of the decedent's estate; that the persons
to be eligible beneficiaries of the testamentary trust were capable of being ascertained; that
the testamentary trust did not violate the rule against perpetuities; and that Morrison's
65

preparation of the will and his agreement to serve as trustee of the testamentary trust did not
violate any rules governing the practice of law. Appellants also denied that Morrison was a
devisee under the will.
Shortly after the filing of Appellees' motion for summary judgment, Morrison filed a
proposed schedule of distribution pursuant to his claim that the Third Article of the
decedent's will created a valid power of appointment. The schedule named the individuals
that he had selected as beneficiaries of the decedent's testamentary trust.
A hearing on the motion for summary judgment was held on February 28, 1992. At
the hearing on their motion for summary judgment, Appellees abandoned that portion of
their motion which sought to have the trial court declare the decedent's will void in its
entirety. Instead, Appellees argued that the trial court should invalidate only those portions
of the will that attempted to create a testamentary trust, or that purportedly gave Morrison a
power of appointment.
On March 19, 1992, the trial court entered a judgment disposing of Appellees'
motion for summary judgment, and ordered that the provisions of the decedent's “Will so
far as they attempt to set up a trust or to create a power of appointment are insufficient as a
matter of law”; that “the Second and Third Articles of [the decedent's will] ... are ...
insufficient as a matter of law to create a trust, to establish a power of appointment or
otherwise to provide for the distribution of the Estate of the decedent[,] and ... the Estate
should be distributed as subsequently determined by this Court[.]” The judgment also
provided that Morrison should be removed as the personal representative of the decedent's
estate.
Appellants' motion for reconsideration was denied on April 10, 1992.
VALIDITY OF TESTAMENTARY TRUST
The judgment entered below found, among other things, “that the provisions of [the
decedent's 1991] Will so far as they attempt to set up a trust or to create a power of
appointment are insufficient as a matter of law[.]”
Appellants argue that the trial court erred in determining that the provisions of the
Second and Third Articles of the decedent's will were insufficient to create a testamentary
trust. Appellants contend that a testamentary trust can be valid even though the beneficiaries
were not named in the will itself, and that the provisions of our Probate Code do not limit
testamentary trusts “to those which name the beneficiary [or beneficiaries] on the face of the
66

will[.]”
It is undisputed that, apart from the language of the will itself, the decedent left no
written or initialed instructions describing his intended beneficiaries. Moreover, the
provisions of the will are devoid of any language that would permit the trial court to
ascertain with any degree of reasonable certainty the prospective beneficiaries of the
attempted testamentary trust. Under these circumstances we conclude that the trial court
correctly determined that a valid testamentary trust did not exist.
The elements of a valid trust include a competent settlor and trustee, intent by the
settlor to create a trust, ascertainable trust res, a sufficiently ascertainable beneficiary or
beneficiaries, a legal purpose, and a legal term. (citations omitted) Because the identity of the
persons intended to be “the objects of [the decedent's] generosity” are not capable of
reasonably being ascertained, we agree with the trial court that the provisions of the
decedent's will attempting to create a testamentary trust were not effective to establish an
express trust. See In re Estate of Liginger, 14 Wis.2d 577, 111 N.W.2d 407, 409 (1961) (will
leaving money to executor and directing executor to pay sums in his sole discretion to
persons whom the decedent had previously indicated created a trust; however, trust failed
because oral declarations of the decedent could not be admitted); see also Restatement
(Second) of Trusts §§ 112, 122 (1959) [hereinafter Restatement of Trusts]; 2 Austin W. Scott
& William F. Fratcher, The Law of Trusts §122 (4th ed. 1987); see also In re Will of Coe, 113
N.M. at 360, 826 P.2d at 581 (elements of a valid trust include sufficiently ascertainable
beneficiary or beneficiaries); In re Estate of Kradwell, 44 Wis.2d 40, 170 N.W.2d 773, 774
(1969) ( trust held not to have been created where uncertainty existed as to identity of
beneficiaries and no one was in position to enforce trust). See generally George E. Palmer, The
Effect of Indefiniteness on the Validity of Trusts and Powers of Appointment, 10 UCLA L.Rev. 241,
280-81 (1963); B.P. de R. O'Byrne, Annotation, Disposition of Property of Inter Vivos Trust Falling
in After Death of Settlor, Who Left Will Making No Express Disposition of the Trust Property, 30
A.L.R.3d 1318 (1970).
In evaluating the arguments of Appellees that the attempted testamentary trust failed
to identify the decedent's intended beneficiaries, we also find the reasoning of Restatement
of Trusts, supra. Section 122 comment a, persuasive. Comment a notes:
When class is indefinite. A class of persons is indefinite within the meaning of the
rule stated in this Section if the identity of all the individuals comprising its
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membership is not ascertainable. The class may be such that it is possible to
determine that certain persons fall within it and that other persons do not fall
within it.... Thus, the “friends” of the settlor or of another person constitute an
indefinite class. So also, the class is indefinite where it includes any natural
person other than the transferee himself or his estate.
The provisions of the Second and Third Articles of the decedent's will specified that
the beneficiaries of his estate were to be selected by Morrison. However, the identity of the
individuals eligible to be selected as beneficiaries were not capable of being drawn from any
specifically identifiable class or category specified by the decedent. Under this posture the
attempted trust was unenforceable.
Appellants, relying in part upon Granado v. Granado, 107 N.M. 456, 760 P.2d 148
(1988), and In re Estate of Shadden, 93 N.M. 274, 599 P.2d 1071 (Ct. App.), certs. denied, 93
N.M. 172, 598 P.2d 215 (1979), also argue that the trial court erred in not permitting them to
introduce extrinsic evidence to clarify the decedent's intended trust beneficiaries. The record,
however, fails to reflect that Appellants pursued this contention at the hearing on Appellees'
motion for summary judgment. Nor do we find either Granado or In re Estate of Shadden
dispositive here.
Granado dealt with an order finding that the circumstances of that case were
sufficient to give rise to the creation of an equitable trust, not an express trust. 107 N.M. at
459, 760 P.2d at 151. Although the court in In re Estate of Shadden held that extrinsic evidence
may be admissible under certain circumstances to clarify an ambiguity in a will, that decision
does not aid Appellants here. 93 N.M. at 278-79, 599 P.2d at 1075-76. Since it is undisputed
that the decedent failed to leave written, signed instructions identifying his intended
beneficiaries, extrinsic, oral testimony was not admissible to rectify defects in the will itself
or to overcome the decedent's failure to leave proper written instructions concerning his
beneficiaries. Cf. Portales Nat’l Bank v. Bellin, 98 N.M. 113, 117, 645 P.2d 986, 990 (Ct. App.
1982) (unless will itself is ambiguous, extrinsic evidence is not admissible to supplement
language of will); NMSA 1978, § 45-2-510 (Repl.Pamp.1989) (“Any writing in existence
when a will is executed may be incorporated by reference if the language of the will
manifests this intent and describes the writing sufficiently to permit its identification.”);
NMSA 1978, § 45-2-513

(Repl.Pamp.1989) (permitting testator to dispose of tangible

personal property, other than money, by reference in will to written statement or list, if
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statement or list is signed by testator and describes items and devisees with reasonable
certainty).
Appellants' brief-in-chief appears to also argue that in the event the provisions of the
decedent's will are insufficient to establish a valid testamentary trust, this Court should
determine whether a resulting or constructive trust should be imposed. We need not
consider this argument because the questions of how the decedent's estate should be
distributed or the determination of the decedent's heirs at law, have not yet been addressed
by the trial court.
CONCLUSION
The order of the trial court granting Appellees' motion for summary judgment and
holding that the Second and Third Articles of the decedent's 1991 will are insufficient to
create a trust or establish a power of appointment is affirmed.
IT IS SO ORDERED.
Notes, Questions and Problems
1. It makes sense that a trust cannot be valid without beneficiaries. From a practicable
perspective, the purpose of a private trust is to benefit a particular person or class of
persons. Without beneficiaries, the trustee has no role to play. Thus, the creation of a trust is
unnecessary. As the next part of the book will indicate, the trustee has to fulfill numerous
duties. At the time the trustee accepts his role, the testator is deceased. Thus, the only person
that can hold the trustee accountable is the beneficiary. Thus, the trust instrument must
name someone who has the authority to ensure that the trustee is abiding by the terms of the
trust. Problems arise in two situations. First, the testator names beneficiaries whose identities
cannot be determined. This is especially true when the beneficiaries are a part of a class
without a defined membership. Second, the testator identifies the beneficiaries, but they are
not capable of enforcing the trust.
2. If it is clear that the testator meant to create a trust and a class is named in the trust,
should extrinsic evidence be presented to prove the members of the class? Instead of taking
a “one size fits all” approach, should the courts evaluate the existence of the beneficiaries on
a case by case basis? For instance, if the testator leaves money in trust for her best friends.
Might it be easy to ascertain the names of the persons who fit that description?
3. Problems
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In which of the following situations might the trust fail for lack of beneficiaries?
a). Roger executed a will stating, “I leave my house to Alexander in trust for my favorite
nephew.”
b). Alicia executed a will stating, “I leave the residuary of my state to Shannon in trust for
the man I have been dating for the last ten years.”
c). Mesha executed a will stating, “I leave my apartment complex to Keisha in trust for the
benefit of the nonprofit corporation she plans to establish.”
d). Melanie executed a will stating, “I leave my entire estate in trust to Feed The Children for
the benefit of the two little girls I started sponsoring on March 7, 2011.”
Class Discussion Tool
Gloria was a third grade teacher. Gloria was childless and had never married. Nonetheless,
she constantly referred to the students in her class as her foster kids. At the beginning and
end of every school year, Gloria gave gifts to all of the children in her third grade class.
Gloria made a good salary, so she annually placed 10% of her salary into a 401k account. As
with most retirement accounts, some of the money Gloria placed in her 401k account was
invested in the stock market. In 1998, Gloria executed a will containing the following
provision: “I leave the profits I will make on my 401k in 1999 to my sister, Delores in trust
for my foster children that are enrolled in my class during the 2000-2000 academic year.
After I die, it is my hope that Delores will do the right thing and take care of the kids.” Has
Gloria created a valid testamentary trust? If not, create a valid trust that achieves Gloria’s
objectives.

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Chapter 3 - Categories of Private
Trusts
Trusts fall in to two broad categories—private and charitable. The creation of
charitable trusts will be discussed in Chapter Eight. The focus of this chapter is upon the
different types of private trusts. This chapter is divided into two parts. Part I introduces
expressed trusts. These are trusts that are expressly created by the settlor in a written
instrument. In this part, two types of private expressed trusts will be compared—inter vivos
trusts and testamentary trusts. Inter vivos trusts are established during the settlor’s lifetime,
and are a part of the nonprobate system. To the contrary, a testamentary trust is created by
will. The testamentary trust does not come into existence until the will is probated. Part II
consists of a discussion of trusts that are created by operation of law. These are really
implied trusts that are established by courts. Therefore, those trusts do not have to conform
to the requirements needed to create valid trusts. The implied trusts that will be discussed
are the constructive trust, resulting trust, and the honorary trust.

3.1.

Private Expressed Trusts
3.1.1. Inter vivos Trusts vs. Testamentary Trusts
The focus of this book is on testamentary trusts. Thus, the manner in which

testamentary trusts are created was discussed in Chapter Two. A basic knowledge of the law
governing inter vivos trusts is helpful because those types of trusts are one of the most
commonly used will substitutes. The property in both the inter vivos and the testamentary
trusts is not distributed to the third party beneficiary until after the settlor’s death. Inter
vivos trusts are created during the settlor’s lifetime. They can be revocable or irrevocable. If
the inter vivos trust does not involve an interest in real property, it may be created orally.
The testamentary trust can only be created by a written instrument that satisfies the Wills
Act. The moment the inter vivos trust is created the beneficiaries become equitable owners
of the trust corpus. The beneficiaries of the testamentary trust do not receive any interest in
the trust property until after the death of the settlor. An inter vivos trust may be created by a
declaration of trust or a deed of trust. In order to create the inter vivos trust by a declaration
of trust, the settlor must declare that he holds certain property in trust and manifest an intent
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to hold the property as such. When creating a trust by declaration, the settlor declares that
she is the trustee of the property for the benefit of herself during her lifetime and that the
remainder of the trust property will be distributed to a third party when she dies. The third
party will be receiving property from the trust and not the will. While she is alive, the settlor
has the power to revoke the trust and the right to the trust income. Since the settlor is also
the trustee, she has the right to manage the trust property. The beneficiary receives a vested
interest in the trust property until it is revoked. In some cases, the settlor gives up her
control and makes the inter vivos trust irrevocable. An irrevocable inter vivos trusts looks a
lot like a testamentary trust. The testamentary trust is revocable until the testator dies. The
settlor may also establish an inter vivos trust by a deed of trust. A deed of trust transaction
involves three parties—the settlor, the trustee, and the beneficiary. The settlor transfers the
property to be held in trust to a third party who is to act as the trustee. When the settlor dies,
the trustee distributes the property to the beneficiaries or hold it in further trust. While the
settlor is alive, she is the only person that is reaping the benefits of the trust. One of the
most litigated issues is the nature of the interest that the beneficiary has in a revocable inter
vivos trust.

Cate –Schweyen v. Cate, 15 P.3d 467
Justice JAMES C. NELSON delivered the Opinion of the Court.
¶ 1 This is an appeal from an Order and Rationale entered by the Eleventh District
Court, Flathead County, on December 14, 1998, denying Personal Representative JoAnn
Cate's (JoAnn) motion for summary judgment and granting a motion for summary judgment
in favor of Shannon Cate Schweyen, individually, and as Conservator of Sara Cate, a minor
(collectively referred to herein as Shannon). The Order provided that JoAnn would convey
various assets to Shannon and take other actions with respect thereto, and also awarded
Shannon her costs.
¶ 2 We reverse and remand for further proceedings consistent with this opinion.
¶ 3 On appeal, JoAnn raises the following issues:
1. Whether the District Court erred in finding that the 1988 document represents a
testamentary trust as opposed to an inter vivos trust which failed for lack of delivery of the
document or the trust property to the trustee.
2. Whether the District Court erred in finding that a testamentary trust is not subject to the
homestead allowance, exempt property, family allowance, rights of creditors, elective share
72

of the surviving spouse, and to expenses of administration.
We conclude that the first issue is dispositive, and therefore decline to address the
second issue.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 4 The focus of this controversy is a handwritten document drafted by Jerome J.
Cate (Jerry), a practicing attorney in Montana for nearly 30 years and now deceased, entitled
“Irrevocable Trust Reserving Income For Life.” The document was signed by Jerry and
dated January 2, 1988. Jerry died intestate on April 4, 1995.
¶ 5 The trust document purported to “sell, assign and convey” various mineral
interests, which Jerry had inherited from his mother and her brother, to a trust for the
benefit of his daughters from his first marriage, Shannon, Kristin, and Sara, with Shannon
serving as trustee. Jerry reserved a life interest for himself, and then, upon his death, the
three daughters would receive a term of years interest for 20 years, and then the corpus
would be distributed outright to the daughters or their heirs pursuant to a “per stirpes”
declaration. The trust document apparently was drafted by Jerry in anticipation of his
remarriage to the Appellant, JoAnn, in February of 1988. The document reflects this,
providing that “bearing in mind specifically that I intend to marry again on the 14th of
February, 1988, [I] do hereby sell, assign and convey ...” The undisputed facts show that
Jerry never transferred or conveyed the named mineral interests to the trust or otherwise
delivered the trust property to Shannon, the named trustee.
¶ 6 At the time of his death, JoAnn, in her capacity as personal representative of
Jerry's estate, refused to convey the alleged trust property upon the request of the daughters.
Consequently, Shannon, acting individually and as conservator for her youngest sister, Sara,
filed a petition in September of 1997, requesting that the District Court declare that either an
express or resulting trust in the mineral interests existed. (The eldest daughter, Kristin, is not
a party to this action.) At that time, the handwritten document had not been located; rather,
a 1993 bill of sale document executed by Jerry indicated the existence of the trust.
¶ 7 The 1993 bill of sale was executed to convey Jerry's assets to a “joint revocable
inter vivos trust” which he drafted in 1990. The bill of sale provided: “This Bill of Sale and
Assignment does not include any mineral interests owned by Jerome J. Cate, a/k/a Jerry
Joseph Cate, which have heretofore been placed in trust for the benefit of Shannon and Sara
Cate.” Kristin's name was apparently omitted from this reference due to a rift between her
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and Jerry. Thus, Shannon pursued the legal theory that the referenced trust was testamentary
in nature, and therefore JoAnn, as personal representative of Shannon's father's estate, must
fund the testamentary trust with the mineral interests owned by Jerry at the time of his
death.
¶ 8 Once the 1988 trust document was found, Shannon did not alter her legal theory,
maintaining that the handwritten trust document was testamentary as well.
¶ 9 In response to Shannon's petition, JoAnn contended that the handwritten
document was not a valid testamentary trust. She argued that the document intended to
create an inter vivos trust, which Jerry never executed by conveying or otherwise transferring
the interests to the trust or Shannon. Therefore, according to JoAnn, the handwritten trust
document is unenforceable, and the identified mineral interests should be included within
Jerry's estate.
¶ 10 Both parties moved for summary judgment. Following a July 29, 1998 hearing,
the District Court denied JoAnn's motion for summary judgment and granted summary
judgment in favor of Shannon.
¶ 11 The District Court concluded that to qualify as a testamentary disposition, the
document need only comply with Montana's statutory requirements for a will. The court
concluded that the handwritten trust document was testamentary. The court stated that
“[t]he fact that Decedent chose to reserve income for life when he created the trust is not
inconsistent with an intention to create a testamentary disposition.” The court further
concluded that the “evidence is clear, convincing and overwhelming that the intent of
Decedent Jerome J. Cate was to establish a testamentary trust with his daughters to be the
beneficiaries thereof.” The court also ruled that “Respondent's contention that the
instrument is a failed attempt to create an inter vivos transfer of the property is belied by the
holographic nature of the instrument.”
¶ 12 JoAnn filed a motion to amend the order so that it would reflect that the subject
trust properties, if indeed testamentary, should first be subject to probate, meaning the
property potentially would be reduced by various statutory allowances and exemptions. This
motion was deemed denied.
¶ 13 JoAnn appealed.
STANDARD OF REVIEW
¶ 14 This Court reviews an order granting summary judgment de novo, using the same
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rule 56, M.R. Civ. P., criteria applied by the district court. Se Calcaterra v. Montana Resources,
1998 MT 187, ¶9, 289 Mont. 424, ¶9, 962 P.2d 590, ¶9. This Court looks to the pleadings,
depositions, answers to interrogatories, admissions on file, and affidavits to determine the
existence or nonexistence of a genuine issue of material fact. See Erker v. Kester, 1999 MT
231, ¶17, 286 Mont. 123, ¶17, 988 P.2d 1221, ¶17.
¶ 15 Here, no material facts remain in dispute. Rather, both parties contend that
they are, respectively, entitled to judgment as a matter of law, in light of the District Court's
conclusion that the trust document in question was testamentary, rather than inter vivos. As
with the judicial interpretation and construction of any instrument, the question of whether
any particular language creates an express trust, given the circumstances under which the
trust was executed, is a question of law for the court to decide. See Estate of Bolinger (1997),
284 Mont. 114, 118, 943 P.2d 981, 983 (citation omitted). Thus, accepting the facts found by
the District Court, we will proceed to determine if either party was entitled to judgment as a
matter of law.
DISCUSSION
Whether the District Court erred in finding that the 1988 document represents a
testamentary trust as opposed to an inter vivos trust which failed for lack of delivery of the
document of the trust property to the trustee.
¶ 16 JoAnn argues that the trust document in dispute is inter vivos, rather than
testamentary, and is therefore unenforceable because no property was ever transferred or
conveyed to it by her deceased husband, Jerry, as required by law. Thus, the named trust
property should remain in Jerry's estate, and she should be entitled to judgment as a matter
of law.
¶ 17 Shannon contends that the District Court's conclusion that the trust document
was testamentary is correct, and therefore the trust is valid because her father intended that
the trust would remain “dry” until his death at which time his estate would transfer the
mineral interests. Alternatively, Shannon argues that even if an express trust technically
cannot be enforced, then an involuntary trust should be imposed to achieve an equitable
result based on her father's clear intent expressed in the document.
¶ 18 The theories set forth by both parties comport with statutory law governing
creation of trusts in Montana. Under §72-33-203, MCA, a trust is created “only if there is
trust property .” Under §72-33-201(2), MCA, a valid inter vivos trust requires that the owner
75

transfer the subject property to a trustee during the owner's lifetime. In contrast, under
subsection (3), a valid trust may be created when the property is identified as a “testamentary
transfer” to a trustee. Under §72-33-216, MCA, a court may exercise its equitable powers
and impose a “resulting trust” to fulfill the manifest intent of the trustor if the trust fails to
fulfill this intent.
¶ 19 Further, Montana's statutory requirements generally comport with the
Restatement (Second) of Trusts (1959), which often has been relied on by this Court, and
has been presented as persuasive authority by the parties here. See, e.g., McCormick v. Brevig,
1999 MT 86, ¶ 63, 294 Mont. 144, ¶ 63, 980 P.2d 603, ¶ 63. See also §72-33-201, MCA,
Official Comments; Restatement (Second) of Trusts § 17 (identifying five methods of
creating trusts similar to subsection (1) through (5) under §72-33-201, MCA).
¶ 20 As a preliminary matter, we shall first dispense with the fundamentally flawed
argument that the trust document at issue was testamentary. We conclude that as a matter of
law the trust document clearly and convincingly expresses an intent to create an inter vivos
trust that would take effect during Jerry's lifetime, notwithstanding whatever alleged
misunderstandings or intentions the he may have expressed or exercised at a later date.
¶ 21 Our examination of the construction of the trust in question here is guided by
several steadfast rules that were recently consolidated in this Court's decision in Estate of
Bolinger (1997), 284 Mont. 114, 120-22, 943 P.2d 981, 985. First, we must seek out the
trustor's “intent,” so far as possible. Second, we must look to the language of the trust
agreement itself to ascertain this intent. Third, the words used in the instrument are to be
taken in their ordinary and grammatical sense unless a clear intention to use them in another
sense can be ascertained. Finally, the burden of proof to establish the existence of a trust-or
in this case a particular “kind” of trust-is upon the party who claims it, and must be founded
on evidence which is unmistakable, clear, satisfactory, and convincing. See Bolinger (1997), 284
Mont. at 120-22, 943 P.2d at 985. (citations and internal quotations omitted).
¶ 22 Removing superfluous verbiage, the handwritten document, identified as an
“Irrevocable Trust Reserving Income For Life” provides:
I Jerome J. Cate ... do hereby sell, assign and convey all of my oil gas and
mineral interests ... to my daughter, Shannon Cate, to hold in trust for her
benefit and the benefit of her sister Kristin Cate and her sister Sara Cate, as
Shannon in her sole discretion shall see fit, for a period of time twenty years
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subsequent to the date of my death, at which time she shall distribute those
mineral interests in equal shares ... reserving, however, to myself the income
from this trust for my lifetime.
¶ 23 Shannon argues at length that the foregoing writing technically satisfies statutory
requirements for a holographic will, and is therefore “testamentary.” See §§72-2-522 and 531,
MCA (providing rules for holographic wills and testamentary additions to trusts).
¶ 24 A testamentary trust, however, not only must comply with the statutory
requirements for a will, but also must take effect “only upon the testator's death.” See Black's
Law Dictionary at 1475 (6th ed.1990); Restatement (Second) of Trusts § 26, Comment a.,
and § 56, Comment b. (stating that in order for a disposition to be “testamentary,” the
owner of property who transfers property or deed of conveyance to trustee inter vivos must
manifest an intention that the conveyance shall not be effective until his death). Further, in
order for a document to be deemed “testamentary,” generally, it also must be revocable, and
the settlor or trustor must retain the property under his control during his life. See Black's
Law Dictionary at 1474 (6th ed.1990). Although disputed by Shannon, these general
definitions actually concur with the Restatement definition which she recites in her brief: “[a]
testamentary disposition of property is a disposition to take effect upon the death of the
person making the disposition and as to which he has substantially entire control until his
death.” Restatement (Second) of Trusts § 53, Comment a. This Restatement section adds
that such a disposition is testamentary “whether made by a will or a document which
purports to be a will or made by a transaction inter vivos, as by a deed, unsealed writing or
parole declaration or transfer.”
¶ 25 Thus, in order to be construed as “testamentary,” a trust document must first
and foremost express a clear and unmistakable intent that the trust will not take effect until
the testator's death. Following this rule generally requires that the trustor retains the power
of revocation, and expresses no intention to pass a present interest. See In re Gasparovich’s
Estate (1971(, 158 Mont. 21, 23-24, 487 P.2d 1148, 1150 stating “common sense” rule that
the true test of the character of an instrument is not the testator's realization that it is a will,
but his intention to create a revocable disposition of his property, to accrue and take effect
only upon his death, and passing no present interest). Therefore, a “testamentary”
disposition is usually incompatible with a trust established by a trustor who retains a life
interest, as a beneficiary of the trust, although a new beneficiary or beneficiaries acquire an
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interest upon the trustor's death. See generally Restatement (Second) of Trusts §§ 56,
Comment f. and 57; 76 Am. Jur. 2d §§ 33 and 88 (1992) (stating that a “ reservation of a life
estate or interest does not make a disposition in trust a testamentary disposition”).
¶ 26 Suffice to say, to construe the foregoing document as “testamentary” would
require an alchemist's crucible. While not nimbly drafted, the document nevertheless
expresses a clear and convincing intent that it would take effect inter vivos, or during Jerry's
lifetime. Rather than anticipating a future testamentary transfer by such common language as
“give, devise, and bequeath,” the transfer is that of an ordinary, present conveyance: “I ... do
hereby sell, assign and convey ...” Further, there is no preceding or subsequent qualification
of this transfer language by other language such as “upon my death” or “when I die” or “in
the event of my death.” Rather, the “twenty years subsequent to the date of my death”
language which appears later merely serves as a fixed termination date-rather than a
commencement date-for the trust itself. Although Jerry did in fact retain legal title over the
trust property, he did not name himself as trustee; rather, this duty is expressly accorded to
his daughter, Shannon, meaning the document expresses a clear intent that Jerry planned to
divest himself of legal title over the named trust property and thereby transfer a present
interest. In turn, the “income from this trust for my lifetime” language indicates that the
trust would come into existence during Jerry's lifetime, and he would become the trust's first
beneficiary. Finally, the document itself is identified as “irrevocable,” which in light of the
accompanying language indicates an unmistakable intent to pass legal title to the trust during
Jerry's lifetime, and thereby remove the property from his estate.
¶ 27 Taken as a whole, the evidence that the trust document is testamentary does not
rise to the level of being unmistakable, clear, satisfactory, or convincing. Rather, the opposite
is true: the trust document convincingly displays all the attributes of an inter vivos transaction
that the trustor intended would take place at the time the document was drafted or soon
thereafter. We therefore hold that the District Court erred in concluding that Jerry Cate's
handwritten trust document was testamentary.
¶ 28 Pursuant to JoAnn's summary judgment argument that was denied by the
District Court, we next turn to the issue of “delivery” to determine whether the trust in
question was ever made legally effective, or instead remained a “phantom” or “dry” trust and
therefore unenforceable. See generally McCormick v. Brevig, 1999 MT 86, 294 Mont. 144, 980
P.2d 603.
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¶ 29 This Court has concluded that, under the common law, in order to establish an
inter vivos trust, there must be a transfer of property. McCormick, ¶ 63 (quoting Restatement
(Second) of Trusts § 17 and 32). We quoted from the Restatement of Trusts that “if the
owner of property makes a conveyance inter vivos of the property to another person to be
held by him in trust for a third person and the conveyance is not effective to transfer the
property, no trust of the property is created.” McCormick, ¶ 63 (quoting §32). See also Am. Jur.
2d § 49 (1992) (stating general rule that a separation of legal title and equitable ownership of
the trust property is necessary to the formation of an express trust); Am. Jur. 2d § 52 (1992)
(stating general rule that in order to create a valid trust, there must be an actual conveyance
or transfer of property).
¶ 30 The undisputed facts clearly reveal that Jerry never delivered, or conveyed, or
otherwise attempted to transfer the identified trust property to the named trustee, his
daughter Shannon, or to the trust itself with or without her knowledge.
¶ 31 Further, the trust document itself is insufficient to serve as an instrument of
conveyance. Although the property is clearly identified in the handwritten document, we
concluded under the similar circumstances described in McCormick that in order for a trust
document to serve as an instrument of conveyance, the person executing the trust document
must subsequently redeliver, confirm, ratify, or adopt the transfer. See McCormick, ¶ 66
(requiring “some further indication of the grantor's intent to divest himself of valuable real
property” and concluding that express trust was invalid as a matter of law because there was
“no proper conveyance into the trust of trust property”).
¶ 32 The reasons for Jerry's omissions, as JoAnn indicates in her brief, are known
only to Jerry. That the undisputed facts clearly show that Jerry intended to create some form
of a trust that would benefit only his three daughters unfortunately does not alter the fact
that he never took the affirmative legal steps necessary for the trust to become enforceable
as either a testamentary or inter vivos trust.
¶ 33 Thus, we have two options, pursuant to our de novo review: to either agree with
JoAnn and conclude that no trust existed, and therefore the property should remain in
Jerry's estate, or that an involuntary or “resulting” trust, one that would carry out Jerry's
intent, should be enforced, which Shannon argues would achieve a correct, equitable result.
We conclude, however, that the underlying “resulting trust” equitable doctrine is entirely
incongruous with the factual circumstances presented here.
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¶ 34 An involuntary trust is a creature of equity, where a court imposes or creates a
trust to work an equitable result. See Eckart v. Hubbard (1979), 184 Mont. 320, 326, 602 P.2d
988, 991. Under §72-33-216, MCA, a court may exercise its equitable powers and impose a
“resulting trust” to fulfill the manifest intent of the trustor if the trust fails to fulfill this
intent. However, as a matter of law, such a “resulting trust” creates an equitable reversionary
interest whereby the original transferor or his heirs become the beneficiary of the trust. See
Eckart v. Hubbard (1979), 184 Mont. at 327, 602 P.2d at 992. See also Restatement (Second) of
Trusts § 404 and Chapter 12 Introductory Note (stating that the beneficial interest “springs
back or results to the person who made the disposition or to his estate, and the person
holding the property holds it upon a resulting trust for him or his estate”). To illustrate, Jerry
could have created a trust as specified in his handwritten document and properly transferred
the property. Upon his death, if the beneficiaries did not survive him and left no issue, the
trust would have “failed” pursuant to its own terms because no subsequent beneficiaries
were named. See §72-33-216, MCA,. As an equitable remedy, the “resulting” remainder
would revert to Jerry's estate, although this specific transfer of interest was not expressed in
the trust document.
¶ 35 Thus, even if we were to impose a resulting trust, as Shannon argues, the
property would nevertheless revert to Jerry's estate. This result is no different, therefore,
than if we concluded that no trust exists. See Eckart v. Hubbard (1979), 184 Mont. at 328, 602
P.2d at 992 (describing identical circumstances and concluding that trust property must be
returned to trustor's estate).
¶ 36 The other type of a involuntary trust, the constructive trust, which is based on
the equitable remedy of unjust enrichment-i.e., the plaintiff brings a suit to enforce a
constructive trust seeking to recover specific property-was not argued by Shannon, and is
therefore not available as an equitable remedy. See §72-33-219, MCA (providing that a
constructive trust arises when a person holding title to property is subject to an equitable
duty to convey it to another on the ground that the person holding title would be unjustly
enriched if he were permitted to retain it).
¶ 37 Accordingly, we conclude that the inter vivos trust document at issue failed due to
the lack of a transfer of property to the trust during Jerry Cate's lifetime, and therefore no
enforceable trust existed. Based on this conclusion, we hold that the District Court erred
when it determined that Shannon was entitled to judgment as a matter of law, and denied
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JoAnn's motion for summary judgment.
¶ 38 This matter is reversed and remanded for further proceedings consistent with
this opinion.
Chief Justice J.A. TURNAGE, dissenting.
¶ 39 I respectfully dissent from the majority opinion.
¶ 40 The District Court concluded that the handwritten trust document executed by
Jerome Cate met the requirements of the Montana Statute of Wills and would be valid as a
holographic will. It further concluded that JoAnn Cate had produced no persuasive authority
that an otherwise valid testamentary disposition which was never revoked is invalid simply
because the testator chose to designate the disposition as “irrevocable.”
¶ 41 Under long-settled rules of construction of testamentary instruments, including
trusts, the testator's intent controls. See, e.g., Estate of Bolinger (1997), 284 Mont. 114, 120-21,
943 P.2d 981, 985. On this record, Jerome Cate's intent is crystal clear-to create a
testamentary trust for his daughters. The reason for that intent is also clear-to pass on to his
blood descendants mineral interests which he himself had inherited from his mother and her
brother as part of his family legacy. If the majority cannot discern that intent, then their
vision is fogged.
¶ 42 I would affirm the decision of the District Court.
Justice W. WILLIAM LEAPHART, dissenting.
¶ 43 I join in the dissent of Chief Justice Turnage and add the following
considerations as bearing upon my conclusion that the District Court was correct in
concluding that this document was a valid holographic testamentary trust:
¶ 44 1. The author, in typical precatory and testamentary fashion, characterizes
himself as being of “sound and disposing mind[.]”
¶ 45 2. Cate was cognizant that he was about to marry a woman whom he had
known for less than a month and that by his marriage to her he would have stepchildren
whom he barely knew.
¶ 46 3. The language “twenty years subsequent to the date of my death,” indicates
both a commencement date (date of death) and a fixed termination date, twenty years
thereafter.
¶ 47 4. Cate, an experienced attorney, knew how to fund an inter vivos trust but did
not do so here.
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¶ 48 5. Cate used a testamentary reference to the distribution of the mineral interests
to his daughters “or their heirs per stirpes[.]”
¶ 49 6. Cate died leaving no formal last will and testament.
¶ 50 7. The beneficiaries of the testamentary trust were his daughters; his natural
heirs and expected recipients of the mineral interests he had inherited from his mother and
uncle.
¶ 51 8. As typical with holographic documents, the document is handwritten and not
notarized.
¶ 52 Although there are certainly other provisions in the document which lend
themselves to a contrary interpretation, when the document is read as a whole and in light of
the circumstances under which it was executed, it is clear to me that Cate intended it to be
testamentary in nature. Accordingly, I respectfully dissent.

Johnson v. Kotyck, 90 Cal. Rptr. 2d 99
BOEN, P.J.
Is a beneficiary of an inter vivos trust entitled to receive trust accountings while the
trustor is under the care and custody of a court-appointed conservator? We conclude that
the beneficiary is not entitled to an accounting for a trust that remains revocable despite the
infirmity of the trustor and the ensuing conservatorship.
FACTS
Elisabeth Frudenfeld is the trustor and original trustee of an inter vivos trust created
on December 7, 1987 (the Trust). On August 30, 1996, the superior court appointed a
professional conservator to manage Frudenfeld's affairs after finding that Frudenfeld is
unable to care for herself. The court also appointed legal counsel to represent Frudenfeld in
all conservatorship proceedings. The successor trustee of the Trust is respondent Karla
Kotyck, one of Frudenfeld's daughters.
The Trust and its April 9, 1992 amendment contain the following clause regarding
revocation: “This declaration of trust, and the trusts evidenced thereby, may be revoked at
any time by the Trustor, during the lifetime of the Trustor, by the Trustor delivering written
notice of revocation to the Trustee.” The Trust also provides that it shall become irrevocable
upon the death of the trustor.
A petition was brought under Probate Code section 17200 by appellant Laurie Cook
Johnson, Frudenfeld's daughter and a Trust beneficiary. Johnson asked the probate court (1)
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to order the trustee to prepare a report and accounting for the Trust and (2) to review the
trustee's activities. Trustee Kotyck demurred to Johnson's petition, maintaining that Johnson
has no right to receive accountings or to question the trustee's actions with regard to the
Trust. The probate court sustained Kotyck's demurrer to the petition without leave to
amend and dismissed the petition with prejudice. This timely appeal followed.
DISCUSSION
Trial Court's Jurisdiction
A trust beneficiary may petition the probate court regarding matters affecting the
internal affairs of a trust, unless the trust instrument expressly withholds authority to
proceed. Among other powers, the court has jurisdiction (1) to interpret the terms of the
trust, (2) to determine the existence or nonexistence of any power, privilege, duty or right,
(3) to instruct the trustee, and (4) to compel the trustee to report information about the trust
or account to the beneficiary. (§17200, subds. (b)(1), (2), (6), (7); Estate of Heggstad (1993) 16
Cal. App. 4th 943, 951-952, 20 Cal. Rptr.2d 433 ).
The probate court's jurisdiction extends to the type of trust involved in this appeal.
“Section 17200 makes no distinction between inter vivos trusts (i.e., living trusts) and
testamentary trusts (i.e., trusts created by a will). Further, case law supports a probate court's
jurisdiction under section 17200 to consider petitions regarding inter vivos trusts [citation],
and nothing in the statutory scheme indicates any legislative intent to restrict the jurisdiction
of the probate court to only those matters arising after the death of a trustor.” Conservatorship
of Irvine (1995) 40 Cal. App.4th 1334, 1342, 47 Cal. Rptr.2d 587)
3. Rights of a Beneficiary of an Inter Vivos Trust
Appellant Johnson asks this court to determine only one disputed point of law, to
wit: Does the Probate Code give Johnson the right to receive trust accountings from her
sister Kotyck, so long as their mother is alive and her affairs are being administered by a
conservator? The short answer is “No” and the explanation follows.
Johnson agrees at the outset that the trustee of a revocable trust generally has no
duty to report or account to the trust beneficiaries and that the beneficiaries have no right to
receive such accountings. (See § 16964). However, she goes on to argue that “since the settlor
has been declared incompetent, she no longer has the power to revoke.” Johnson reasons
that the beneficiaries of the Trust obtained the right to an accounting once Mrs. Frudenfeld
became a conservatee, because “No one has the power to revoke” and Johnson's rights to
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take from the trust are now vested. As we shall see, it is untrue that no one has the power to
revoke the conservatee's inter vivos trust.
Under the Probate Code, the legal rights of a conservatee—including the right to
revoke a trust—pass to the conservator, under the close scrutiny of the superior court. The
conservator may petition the court for an order “Exercising the right of the conservatee (i)
to revoke a revocable trust or (ii) to surrender the right to revoke a revocable trust ....”
(§2580, subd.(b)(11)) The court is, in this situation, “the conservatee's decisionmaking
surrogate” because “[i]n essence the statute permits the court to substitute its judgment for
that of a conservatee.” Conservatorship of Hart (1991) 228 Cal. App.3d 1244, 1250, 279 Cal.
Rptr. 249). The court must satisfy itself that it is “fully and fairly informed” about the
proposed exercise of the conservatee's legal rights. Id. at p. 1254, 279 Cal. Rptr. 249).
The only limitation on the court's ability to authorize the revocation of a
conservatee's revocable trust is if the trust instrument “(i) evidences an intent to reserve the
right of revocation exclusively to the conservatee, (ii) provides expressly that a conservator
may not revoke the trust, or (iii) otherwise evidences an intent that would be inconsistent
with authorizing or requiring the conservator to exercise the right to revoke the trust.”
(§2580, subd.(b)(11). We have examined the Trust in this case and all of its amendments.
There is nothing in the Trust or its amendments which expressly or impliedly prevents the
conservator from revoking the Trust or which reserves the right of revocation exclusively to
Frudenfeld. Thus, the limitations listed above do not apply here.
Johnson relies primarily on section 15800, which postpones the rights of trust
beneficiaries “during the time that a trust is revocable and the person holding the power to
revoke the trust is competent.” Contrary to Johnson's reading of it, this provision does not
mean that a trust automatically becomes irrevocable when the trustor becomes a
conservatee. The Law Revision Commission comment to section 15800 explains: “This
section has the effect of postponing the enjoyment of rights of beneficiaries of revocable
trusts until the death or incompetence of the settlor or other person holding the power to revoke the
trust.” (Italics added.) It is clear from section 15800 that a conservator, working together with
the superior court as the conservatee's decisionmaking surrogate, is a “person holding the
power to revoke the trust.”
The reading of section 15800 proposed by Johnson would undermine the statutory
scheme relating to revocable trusts. So long as a trust is revocable, a beneficiary's rights are
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merely potential, rather than vested. The beneficiary's interest could evaporate in a moment
at the whim of the trustor or, in the case of a conservatorship, at the discretion of the court.
Giving a beneficiary with a contingent, nonvested interest all the rights of a vested
beneficiary is untenable. We cannot confer on the contingent beneficiary rights that are
illusory, which the beneficiary only hopes to have upon the death of the trustor, but only if
the trust has not been previously revoked and the beneficiary has outlived the trustor. For
this reason, we conclude that section 15800 does not give a beneficiary such as Johnson any
right to a trust accounting so long as a conservator retains authority under section 2580 to
have the trust revoked and to abrogate Johnson's interest in the trust proceeds.
Johnson's primary concern is that the court-appointed professional conservator may
be doing an inadequate job of supervising Frudenfeld's estate, including the Trust, thereby
enabling Kotyck to engage in mismanagement or misappropriation of Trust assets.
Mistrustful of the conservator's abilities or diligence, Johnson wants to oversee Frudenfeld's
estate herself to ensure proper Trust management.
There are two ways to address Johnson's concerns, both falling within the Probate
Code's conservatorship provisions.
First, the conservator is accountable to Johnson and is responsible for preventing the
misappropriation of the conservatee's assets. The conservatorship statutes and the
substituted judgment statutes in the Probate Code are designed to protect the
conservatorship estate for the benefit of the conservatee and for the benefit “of the persons
who will ultimately receive it from the conservatee.” Conservatorship of Hart, supra. 228 Cal.
App.3d at p. 1253, 279 Cal. Rptr. 249). In other words, the conservatorship is designed to
protect persons like Johnson as well as Frudenfeld. If the conservator is concerned that
estate's assets are being wasted or misappropriated, the conservator is empowered to ask the
court to compel “a person who has possession or control of property in the estate of the
ward or conservatee to appear before the court and make an account under oath of the
property and the person's actions with respect to the property.” § 2619, subd. (a).) Kotyck,
as trustee of Frudenfeld's inter vivos trust, is a person in control of property in the
conservatorship estate and must therefore account for her actions with respect to the Trust
property.
The Probate Code requires that the conservator account for the property of the
conservatee. The conservator must file an inventory and appraisal of the conservatee's estate
85

within 90 days after the initial appointment. (§2610.) The conservator must thereafter
account to the court, showing receipts, disbursements, transactions and the balance of
property on hand. . (§2610.). Failure to account subjects the conservator to the risk of
punishment for contempt. (§2629.) When an account is filed, “any relative” of the
conservatee may file written objections to the account. (§ 2622.) Thus, there is already a
mechanism in place through which Johnson, as the daughter of the conservatee, can monitor
the outflow from Frudenfeld's estate and ensure the diligent performance of the
conservator's duties by simply scrutinizing the conservator's accountings and objecting when
appropriate. Further, if the conservator breaches its fiduciary duty to Frudenfeld by allowing
her estate to be frittered away, the conservator is chargeable for “[a]ny loss or depreciation in
value of the estate,” with interest. (§§ 2101, 2401.3.) In other words, the conservator ignores
misappropriations of the conservatee's property at its own peril.
During oral argument, Johnson asserted that the provisions of section 2585
“immunize” the conservator from liability for wrongdoing. This is not correct. Section 2585
only states that the conservator is not required to propose any action under section 2585; i.e.,
the conservator is not required, for example, to propose the creation or revocation of a trust
for the conservatee, or to enter a contract on behalf of the conservatee, or to provide gifts to
charity, relatives, or friends on behalf of the conservatee. §2580, suds. (a)(3), (b)(4), (5), (11).)
However, Johnson as an “interested person” may file a petition of her own in the probate
court under section 2580 to compel the conservator to take action. (See Cal. Law Revision
Com. com., reprinted at 52 West's Ann. Probate Code, foll. § 2585 (1991), p. 829[: “The
remedy for a person who believes that some action should be taken by the conservator
under this article is to petition under Section 2580 for an order requiring the conservator to
take such action with respect to estate planning or making gifts as is set out in the
petition.”].) section 2585 does not immunize the conservator from wrongdoing or permit the
conservator to look the other way if the conservatee's assets are being misappropriated by
others.
Second, the conservatorship statutes provide a direct means for a prospective
beneficiary like Johnson to investigate wrongdoing by a person holding the conservatee's
property. Section 2616 authorizes the filing of a petition concerning a conservatee's assets by
an “interested person, including persons having only an expectancy or prospective interest in
the estate.” (§ 2616, subd. (a)(3).) Johnson is an interested person within this definition. If
86

she chooses, Johnson may charge that Kotyck “has wrongfully taken, concealed, or disposed
of property of the ward or conservatee.” (§ 2616, subd. (b)(1).) The court may then order
that Kotyck answer interrogatories or appear in court to be examined under oath, or both.
(§§ 2616, 2617.) In particular, a trustee who has wrongfully misappropriated the funds of a
ward is subject to citation and examination under section 2616. (In re Ochoa (1942) 50
Cal.App.2d 457, 458-459, 123 P.2d 106 [applying former § 1552, the predecessor statute to §
2616].) Anyone who wrongfully takes the property belonging to a conservatee, including a
trustee, is personally liable for twice the value of the misappropriated property. (§ 2619.5.)
In short, there are satisfactory means by which Johnson can monitor the Trust and
the trustee's activities during the pendency of the conservatorship. Much as Johnson would
like to have a court declare the Trust to be irrevocable during Frudenfeld's lifetime, contrary
to the terms of the Trust, it is unnecessary to do so to protect Johnson's interest. The
Legislature has devised the methods we have described above to protect the rights of
persons interested in the estate of a conservatee. The Legislature has also determined that
the conservator should retain the right to seek revocation of an inter vivos trust during the
conservatee's lifetime. Johnson cannot be accorded all the rights of a vested beneficiary
before the death of the trustor.
DISPOSITION
The judgment is affirmed.

Linthicum v. Rudi, 148 P.2d 746
HARDESTY, J.
In this appeal, we consider whether revocable inter vivos trust beneficiaries have the
right to challenge amendments to the trust, when made by the settlor during the settlor's
lifetime. Because we conclude that a beneficiary's interest in a revocable inter vivos trust is
contingent at most, we hold that, generally, these beneficiaries lack standing to challenge the
settlor's lifetime amendments. Instead, to challenge the settlor's capacity to make
amendments, revocable inter vivos trust beneficiaries must follow the procedures set forth in
Nevada's guardianship statutes, NRS Chapter 159. Accordingly, we affirm the district court's
dismissal of the underlying complaint challenging revocable inter vivos trust amendments.
FACTS
Appellants Ernette and Myrna Linthicum are the brother and sister-in-law,
respectively, of Claire Linthicum–Cobb. In 2002, Cobb executed a will and a revocable inter
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vivos trust. As settlor, Cobb named herself trustee and reserved the power to revoke or
amend the trust throughout her lifetime without having to notify any beneficiary. Cobb
named Ernette and Myrna the primary beneficiaries of the trust upon Cobb's death.
Additionally, Cobb named Ernette and Myrna successor trustees upon Cobb's death or
incapacity. Finally, the trust stated that the trust would become irrevocable upon Cobb's
death.
In 2004, Cobb executed a new will and a restatement/amendment to the trust. The
amended trust replaced Ernette and Myrna as successor trustees with respondent Arnold
Rudi, the nephew of Cobb's deceased husband. Also, the amended trust allegedly named
Rudi as the sole beneficiary. Under the amended trust, Cobb remained the current trustee
and retained the power to revoke the trust. Thus, the amended trust was still a revocable
inter vivos trust.
After Cobb named Rudi the sole successor trustee, Rudi and Guardianship Services
of Nevada petitioned for co-guardianship of Cobb's person and estate because Cobb was
possibly delusional and paranoid. Ernette and Myrna objected to Rudi's appointment as a coguardian; Rudi's petition for guardianship was later withdrawn. The district court granted
Guardianship Services' petition for guardianship because it found that some of Cobb's
actions had resulted in self-neglect and potential self-harm.
Subsequently, Ernette and Myrna filed a complaint alleging that the amended trust
was a product of incapacity and/or undue influence, and they sought a constructive trust
and/or cancellation of the amended trust. As to undue influence, Ernette and Myrna alleged
that Rudi had a confidential relationship with Cobb and participated in executing the
amended trust.
Rudi filed a motion to dismiss the complaint…asserting that Ernette and Myrna had
failed to state a claim upon which relief could be granted because they lacked standing to
challenge the amended trust. Specifically, Rudi argued that a will contest cannot be
maintained until the testator dies, and since Cobb was still alive at the time, Ernette and
Myrna lacked a present legal interest in the will and the trust. Rudi also argued that Ernette
and Myrna could not assert any damages resulting from the amended trust.
Ernette and Myrna simultaneously filed an opposition to Rudi's motion to dismiss
and a motion for the appointment of themselves as guardians ad litem. Ernette and Myrna
argued that they had standing because the amended trust was presently operative and
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effectual. Moreover, they argued that even if they could not challenge Cobb's will until after
her death, it was necessary to challenge the amended trust during Cobb's lifetime to ensure
that her wishes for the administration of her estate were observed while she was
incapacitated. Finally, if the court concluded that they did not have standing, they asked that
they be appointed as guardians ad litem.
The district court granted Rudi's motion to dismiss, without prejudice, finding that
Ernette and Myrna lacked standing to challenge the amended living trust because Cobb was
still alive; the court also denied Ernette and Myrna's motion to be appointed guardians ad
litem. In denying a subsequent rehearing motion, the district court explained that Ernette's
and Myrna's interest was at best contingent and would only vest if they survived Cobb. The
district court also granted Rudi's motion for attorney fees and costs. Ernette and Myrna
appealed.
DISCUSSION
Ernette and Myrna argue that Nevada statutory law allows them to challenge Cobb's
revocable inter vivos trust during Cobb's lifetime*1455 and that the district court erred by
granting Rudi's motion to dismiss. Specifically, Ernette and Myrna argue that NRS 164.015,
NRS 153.031 (1)(a) and NRS 153.031(1)(d) allow interested persons to challenge the validity
of a revocable trust while the settlor is still alive. We disagree.
If a motion to dismiss is made under NRCP 12(b)(5) and “matters outside the
pleading are presented to and not excluded by the court, the motion shall be treated as one
for summary judgment.” The district court did consider matters outside the parties'
pleadings, such as the guardianship order. Thus, we review Rudi's motion to dismiss as a
motion for summary judgment. This court reviews an order granting summary judgment de
novo.
NRS 164.015(1) permits “an interested person” to petition the court for proceedings
“concerning the internal affairs of a nontestamentary trust” and to obtain “any appropriate
relief provided with respect to a testamentary trust in NRS 153.031.” NRS 153.031 (1)(a) and
NRS 153.031 (1)(d) allow a trustee or beneficiary of a trust to petition the court to determine
the existence of the trust and the validity of a trust provision, respectively. However, neither
of these statutes directly addresses revocable inter vivos trusts, such as the trust in this case.
Moreover, these statutes specifically refer to petitions by interested persons. Because the
trust at issue is a revocable inter vivos trust and Cobb retained the ability to revoke the trust
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during her lifetime, Ernette and Myrna have at most a contingent interest that has not yet
vested. Consequently, Ernette and Myrna are not interested persons within the meaning of
NRS 164.015 and NRS 153.031.
In so concluding, we embrace the holdings of other jurisdictions that have
considered the matter. In a case from Ohio, Lewis v. Star Bank, N.A., Butler County, the
beneficiaries of a revocable inter vivos trust sued the trustee for an alleged breach of
fiduciary duty for failing to give pre-death tax and estate-planning advice to the settlor. The
Ohio Court of Appeals determined that while the settlor was alive, pursuant to the terms of
the trust itself, she had reserved the right to modify or revoke the trust. The court further
concluded that as long as the settlor had that right and other “indicia of retained ownership”
during her lifetime, the beneficiaries did not have an absolute entitlement to any portion of
the trust while the settlor was alive. Since the beneficiaries' interests were subject to complete
divestment while the settlor was alive, the court held that the beneficiaries were not in privity
with the settlor or the trustee and could not maintain their lawsuit.
Similarly, in Ullman v. Garcia, a Florida appellate court cited a Florida statute that
prevented revocable trusts from being contested before the settlor's death. Although the
court relied in part on a statute, it also elaborated upon the reasoning behind this rule, much
of which underlies our holding today. The Florida court noted that the devisee of a
revocable trust does not enjoy any control over ownership of the trust until the settlor's
death. Because the settlor has an absolute right to terminate the trust at any time and
distribute the trust property as he or she sees fit, named beneficiaries to a revocable trust are
only “potential devisees.” The court also observed that a revocable trust is “a unique
instrument” that has “no legal significance until the [settlor]'s death.”
Ernette and Myrna cite a California case, Conservatorship of Estate of Irvine, to support
their argument that they have standing to challenge Cobb's revocable inter vivos trust. In
Irvine, a California appellate court upheld a lower court's order invalidating an amendment to
a revocable living trust. However, Irvine is distinguishable from the present case. In Irvine, the
trust allowed the settlor to amend the trust only upon written notice personally served upon
and accepted by the trustee. The court noted that under a California statute, a settlor could
bind himself to a specific method of amendment by providing for that method in the trust
itself. Since the settlor in the case had not served the trustee with notice of the amendment,
the court held that the requirements of the trust had not been satisfied and that the
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amendment never became effective.
Unlike the situation in Irvine, in the present case, Cobb's trust does not contain a
notice requirement or similar provision that would grant standing to Ernette and Myrna to
challenge the trust *1457 amendment, nor does Nevada have a statute similar to the
California statute. Consequently, Irvine does not lend support for Ernette and Myrna's
position.
Nevada statutes do not contemplate beneficiaries to a revocable inter vivos trust
challenging the trust until the settlor's death. Furthermore, such beneficiaries have only a
contingent interest, at most, while the settlor is still alive. That interest does not vest until the
settlor's death. Other jurisdictions addressing the issue have held similarly. For these reasons,
we conclude that Ernette and Myrna lack standing to challenge Cobb's revocable inter vivos
trust while Cobb is still alive.
After filing their complaint, Ernette and Myrna requested that the district court
appoint them as Cobb's guardians ad litem, under NRS Chapter 159, so that they could
prosecute an action against Rudi and the trust on Cobb's behalf. For Ernette and Myrna to
serve as Cobb's guardians ad litem under these circumstances—namely, in a matter in which
they challenge Cobb's actions in amending her trust to exclude themselves as beneficiaries—
would create a conflict of interest. Accordingly, the district court properly denied their
request. To the extent that Ernette and Myrna's concerns center on Cobb's capacity, those
concerns are more appropriately addressed under Nevada's guardianship statutes, NRS
Chapter 159, in the separate action brought under those statutes, rather than through their
appointment as guardians ad litem in the litigation against Cobb's trust.
Finally, Ernette and Myrna also argue that the district court erred in awarding costs
and attorney fees to Rudi as the prevailing party. We have considered the argument, and
based on our holding today, we conclude that it is without merit.
CONCLUSION
Because we conclude that a beneficiary's interest in a revocable inter vivos trust is
contingent at most, we conclude that Ernette and Myrna lack standing to challenge Cobb's
revocable inter vivos trust during Cobb's lifetime. Additionally, we conclude that Ernette
*1458 and Myrna must follow the procedures created by the Legislature when it modified
Nevada's guardianship statutes in 2003, if they wish to pursue a remedy in this matter.
Accordingly, we affirm the district court orders.
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Notes, Questions and Problems
1. In order for there to be a valid inter vivos trust created by a deed of trust, the trust
property must be delivered to the trustee. The settlor usually retains the power to revoke the
trust. Thus, the trustee cannot do any thing with the property until the settlor dies. Unlike an
inter vivos trust that is created by a declaration of trust, the courts require the settlor to
deliver the trust property to the trustee. There are three types of delivery: actual, constructive
and symbolic. Courts require the trust property to be actually delivered unless that is
impossible or impracticable. Actual delivery may not be feasible based upon the nature
and/or location of the property and/or the condition of the settlor. Constructive delivery
exists when the settlor gives the trustee something that permits him to obtain possession of
the property. For example, the settlor can satisfy constructive delivery by giving the trustee
the keys to the safe deposit box where the trust property is located. In order to satisfy the
symbolic delivery requirement, the settlor could give the trustee something that symbolizes
the trust property. For instance, the settlor could send the trustee a list of expensive
paintings that she wants to be the property of the trust if it is not convenient for her to
deliver the paintings in a timely manner.
2. A revocable declaration of trust is created when the settlor states, “I declare myself trustee
of my family’s farm for the benefit of myself during my lifetime. Upon my death, the farm
will pass to my sister to be held in trust for my grandchildren.” How does this differ from a
testamentary trust? Since this trust does not comply with the Wills Act, should it be
enforceable?
3. Problems
Assuming that actual delivery is not possible, in which of the following cases has the
property been effectively delivered?
a). Elizabeth wants to place her collection of twelve antique cars in trust for the benefit of
her children. Elizabeth delivers the automobile insurance policies to the trustee.
b). Egypt wants to place her collection of two hundred rare books in trust for the benefit of
her children. Egypt gives the trustee a memorandum listing the titles of the books.
c). Daniel wants to place his stocks in trust for the benefit of his children. The stock
certificates are in his safe deposit box. Daniel gives the trustee the keys to the desk where the
keys to the safe deposit box are located.
d). Kevin wants to place his bed and breakfast in trust for the benefit of his children. Kevin
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gives the trustee the deed to the property.

3.1.2. Totten/Tentative Trust
Another type of trust that the law recognizes is the Totten trust. The Totten trust is
referred to as the poor man’s trust because it can be created without expense or formalities.
This type of savings account trust was recognized in the landmark case of In re Totten, 71
N.E. 748 (N.Y. 1904). In order to transfer property after death, a person has to execute a
will. If A places her daughter’s name on her bank account with the intention that the
daughter is only to remove money from the bank account after A dies, it is clear that A has
testamentary intent with regards to the money. A is attempting to make a testamentary
disposition of the money without executing a will. This transaction like most payable on
death transactions is invalid. Nevertheless, the Totten trust is an exception to this rule. The
Totten case involved the following transaction. A deposited money into a savings account in
the name of “A, as trustee for B.” While she was alive, A maintained the right to revoke the
trust by taking all of the money out of the account at any time. B was only entitled to the
money that remained in the savings account after A died. The Totten court concluded that
the transaction was not testamentary in nature. The court reasoned that, at the time A made
the deposit, a “tentative “ revocable trust was established. Hence, as beneficiary of that trust,
B was legally entitled to any money left in the account when A died.

3.2.

Trusts Created By Operation of Law
3.2.1

Resulting Trust

In some contexts, courts will imply a trust. A resulting trust is an implied trust that
equity requires the law to establish when it can be inferred from the character of the
transaction that the person who holds the legal title to the property was not intended to have
the beneficial interest. Thus, a resulting trust is really an equitable reversionary interest in
property. The trust is created by operation of law in the following contexts: (1) a private
expressed trust fails or makes an incomplete disposition; (2) the property of the trust proves
to exceeds what is required to satisfy the trust purpose; (3) one person pays the
consideration for a transfer of real property, but the title has been taken in the name of
another person. Consider the following examples:
Example 1-Betty Jo devises property to Billy Bob in trust to pay the income
to Denver for life, and on Denver’s death to distribute the remaining
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property to Betty Jo’s friends. After Denver dies the trust would be dissolved
for lack of ascertainable beneficiaries. In order to avoid letting Billy Bob
retain the trust property, the court would place a resulting trust on the
property for the benefit of Betty Jo’s heirs or devisees.
Example 2-Beyonce purchases Blueacre with money supplied by Kelly.
Unless Beyonce can show that Kelly intended to make a gift of Blueacre to
Beyonce, Beyonce holds title to Blueacre on resulting trust for Kelly.

Sahagun v. Ibarra, 90 S.W.3d 860
KAREN ANGELINI, Justice.
This appeal arises from a dispute over a house in which Maria M. Guadalupe
Sahagun possesses legal title. The trial court determined that a resulting trust was created at
the inception of title in Enrique Ibarra, Sr.'s favor and that this equitable title was superior to
Sahagun's legal title. Sahagun brings four issues on appeal. We overrule all issues and affirm
the judgment of the trial court.
BACKGROUND
In 1991, Ibarra and Sahagun were romantically involved despite the fact that Ibarra was
married to another woman. Ibarra moved into Sahagun's home. Sahagun then sold her
home, and she and Ibarra moved into a rental property. In 1996, Sahagun bought a house in
her name for $89,000.00. That house is the subject of this appeal. Ibarra contributed $10,000
in earnest money. Sahagun paid an additional $15,000.00 as a down payment. Ibarra
contends that he and Sahagun intended to buy the house together. According to Ibarra, the
reason that the title was in Sahagun's name was because he and Sahagun did not want his
wife to know about the purchase. Sahagun disputed Ibarra's version of events and testified
that Ibarra gave her the money, because he had “lived with me for so long off [sic] of me.”
Sahagun claims that Ibarra knew that the house was hers and that it would eventually belong
to her daughter. Ibarra and Sahagun lived in the house together as a couple. Ibarra and
Sahagun later separated, and Ibarra moved out of the home. When Sahagun put the house
up for sale, Ibarra filed a lis pendens. He then filed suit against Sahagun. Later, Ibarra filed a
motion to dismiss without prejudice, claiming that the parties had settled their dispute.
According to Sahagun, she and Ibarra agreed that she would repay him $10,000.00. This
agreement, however, was not reduced to writing. The trial court granted the motion to
dismiss and entered an order of dismissal without prejudice. In March of 1998, Ibarra and
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Sahagun went to the law office of Ibarra's divorce attorney. Sahagun gave Ibarra a check for
$2,000.00 with a notation “partial pymt. on loan” in the memo section. Sahagun claims that
she made this payment in accordance with their settlement agreement. Ibarra disputes
Sahagun's assertion and contends that Sahagun paid him the money so that he could get a
divorce and that he never saw the notation on the check. Ibarra refiled his lawsuit against
Sahagun, requesting that the trial court impose a constructive trust in his favor. The case was
tried to the bench. At trial, Ibarra sought an amendment to add a claim for a resulting trust.
The trial court found in Ibarra's favor and imposed a resulting trust, awarding Ibarra an
undivided interest of 43/100 in the house.
JURISDICTION AND RES JUDICATA/COLLATERAL ESTOPPEL
In her first and second issues, Sahagun argues that the trial court had no jurisdiction
to enter its judgment. Sahagun contends that the prior order of dismissal without prejudice is
substantively an order dismissing the cause with prejudice and thus, bars Ibarra's refiling his
suit against her pursuant to the doctrines of res judicata and collateral estoppel. Indeed, a
dismissal with prejudice functions as a final determination on the merits, Mossler v. Shields,
818 S.W.2d 752, 754 (Tex. 1991), and orders dismissing cases with prejudice have full res
judicata and collateral estoppel effect, barring any subsequent suit arising out of the same
facts brought by the same party against the same respondent. Lentworth v. Traham, 981
S.W.2d 720, 722 (Tex. App-Houston [1st Dist.] 1998, no pet).
Sahagun urges that we should look to the substance of the motion and not to its title.
Because the motion to dismiss without prejudice states that “the parties have settled their
dispute,” Sahagun argues that we should interpret the substance of the motion as requesting
dismissal with prejudice. Similarly, Sahagun contends that because the order of dismissal
without prejudice states that the trial court determined the motion to be “meritorious,” we
should interpret the order as dismissing the case with prejudice. For support, Sahagun cites
De La Rosa v. Vasquez, 748 S.W.2d 23 (Tex. App.-Amarillo 1988, no writ), which arose out of
a suit to establish paternity. In that case, although the parties entitled their joint motion a
“motion for nonsuit,” they requested that the court dismiss their suit with prejudice as they
had fully settled their dispute. Id. at 26. On appeal, Vasquez argued that the trial court should
not have entered judgment with prejudice, because their joint motion was entitled a motion
for nonsuit. Id. The appellate court disagreed and after reviewing the substance of the
motion, determined that the motion, despite its title, was a motion seeking dismissal with
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prejudice based upon the compromise and settlement of the parties. Id. Sahagun asks that we
interpret this holding to extend to any motion seeking dismissal because the parties have
settled their dispute. We decline to do so.
Here, Ibarra moved for dismissal without prejudice on the grounds that the parties had
settled their dispute. The trial court then ordered that the cause be dismissed without prejudice.
The clear intent of the motion and the order was that the cause be dismissed without
prejudice. As the cause was dismissed without prejudice, res judicata and collateral estoppel
did not bar Ibarra's suit. We overrule Sahagun's first and second issues.
RESULTING TRUST
In her third issue, Sahagun argues that there was no evidence to impose a resulting
trust against her. A resulting trust arises by operation of law when title is conveyed to one
person but the purchase price or a portion of it is paid by another. Tricentol Oil Trading, Inc. v.
Annesely, 809 S.W.2d 218, 220 (Tex. 1991). To create a resulting trust, the payment must be
made at the time of purchase and the person seeking to impose a resulting trust must have
paid the money in the character of a purchaser. Lifemark Corp. v. Merritt, 655 S.W.2d 310, 317
(Tex. App.-Houston [14th Dist.] 1983, writ. ref’d n.r.e. No resulting trust exists in favor of
one who pays the purchase price by way of mere loan to another and the conveyance is
taken in the name of the borrower. Id.; Jordan v. Jordan, 154 S.W. 359, 361 (Tex. Civ. App.Texarkana 1913, writ. ref’d) (citing Boehl v. Wadgymar, 54 Tex. 598 (1881). Thus, if A loans
money to B, B purchases property with that money, and the conveyance is taken in B's
name, no resulting trust arises in favor of A. However, if A pays the purchase price and
causes the deed to the property to be placed in B's name, a resulting trust does arise in favor
of A. See Atkins v. Carson, 467 S.W.2d 495, 500 (Tex. Civ. App.-San Antonio 1971, writ ref’d
n.r.e.).
In reviewing a legal sufficiency challenge on appeal, all the record evidence and
reasonable inferences from that evidence are reviewed in a light most favorable to the
findings, and the finding is upheld if it is supported by anything more than a scintilla of
evidence. Formosa Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 48
(Tex. 1998). Anything more than a scintilla of evidence is legally sufficient to support the
finding. Id.
Sahagun argues that Ibarra was required to prove a fiduciary relationship citing
language in Tricentrol Oil Trading, Inc. v. Annesley, 809 S.W.2d 218, 220 (Tex. 1991), for
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support. In Tricentrol , the supreme court explained that “[w]hen title to property is taken in
the name of someone other than the person who advances the purchase price, a resulting trust
is created in favor of the payor.” Id. (emphasis added). Once this resulting trust is created, the
“trustee of a resulting trust stands in a fiduciary relationship with the beneficiary insofar as
the trust property is concerned.” Id. Tricentrol stands for the proposition that once a resulting
trust is created, the trustee (in this case, Sahagun) stands in a fiduciary relationship with the
beneficiary (in this case, Ibarra). For the evidence to be legally sufficient, there must be some
evidence that a resulting trust was created. There need not, however, be evidence of a
fiduciary relationship between Ibarra and Sahagun prior to the creation of the resulting trust.
The creation of the resulting trust, itself, establishes the fiduciary relationship.
At trial, Ibarra testified that he and Sahagun decided to buy a house because “they
were just throwing money away” by renting a house. A real estate agent had told him about
the house that is the subject of this suit. According to Ibarra, he and Sahagun liked the house
and Ibarra put $1,500.00 of his separate money down as earnest money. Ibarra testified that
he and Sahagun decided to purchase the house in her name because Ibarra was not divorced
and they wanted to protect Sahagun from his wife and children. Because he and Sahagun
wanted to “expedite things,” Ibarra put $8,500.00 more down as earnest money. Thus,
according to Ibarra's testimony, he and Sahagun agreed to purchase the house together.
Although Sahagun's testimony contradicts Ibarra's, his testimony is more than a scintilla of
evidence that a resulting trust was created at the time of inception of title. We overrule
Sahagun's third issue.
CONCLUSION
Having overruled all issues, we affirm the judgment of the trial court.

3.2.2. Constructive Trust
A constructive trust is an equitable remedy designed to prevent unjust enrichment or
to punish fraud. The court places a trust over the property to prevent the wrongdoer from
benefitting from its use. The moment the constructive trust is created the wrongdoer loses
all interest in the trust property. Constructive trusts are different from resulting trusts
because courts impose constructive trusts in situations where no trust was ever anticipated.
For instance, if a person named in the testator’s will causes the testator’s death, the slayer
statute will usually prevent the person from inheriting. Since the probate court is a limited
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jurisdiction court, it has to honor the terms of the testator’s will and give the slayer the
bequest. In order to prevent the slayer from benefitting from his crime, the court can
imposed a constructive trust on the property he receives under the will. Thus, the slayer
never takes an interest in the property. He holds the property in trust for the testator’s next
of kin. Once the property is converted into a constructive trust, the holder of the property
must transfer it to the constructive beneficiary.

Rawlings v. Rawlings, 240 P.2d 754
AMENDED OPINION
On Certiorari to the Utah Court of Appeals
DURRANT, Associate Chief Justice:
INTRODUCTION
¶1 We granted certiorari in this case to determine whether the court of appeals erred
in reversing the district court's imposition of a constructive trust. The parties in this case are
siblings who dispute the ownership of farm land transferred by their father. The oldest
sibling, Donald, received the land as the grantee under a warranty deed. He contends that his
father transferred the land to him in exchange for payments he made on some of his father's
debts. The family's four other siblings and their spouses (collectively, the “siblings”) contend
that their father deeded the land to Donald in an attempt to create a family trust. During the
time period surrounding this transfer, their father had been diagnosed with cancer and
owning the land made him ineligible for welfare assistance. The siblings contend that their
father placed the property in their older brother's name so that he could act as trustee over
the land and hold it for the benefit of the family. The siblings also contend that, in the
decades since the transfer, the land was treated as a family farm and that they have
contributed to its care, maintenance, and profitability.
¶2 The district court credited the testimony of the siblings and found that the oldest
brother had been unjustly enriched by accepting the siblings' years of contributions to the
success of the farm. Accordingly, the court exercised its equitable power to award a
constructive trust in favor of the siblings. The court of appeals reversed. Concluding that
certain of the district court's findings of fact were inconsistent with its award of a
constructive trust, the court of appeals held as a matter of law that the siblings could not
prevail on any theory of constructive trust. We exercised our jurisdiction pursuant to Utah
Code section 78A-3-102(3)(a) (2008) and granted the siblings' petition for certiorari. We
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reverse the judgment of the court of appeals.
BACKGROUND
¶3 Because the parties do not dispute any of the trial court's findings of fact, we
recite the facts in accordance with those findings.
¶4 The parties in this case are siblings whose father, Arnold Rawlings, owned twentytwo acres of land near Orem, Utah. In 1957, a few years before the events giving rise to this
case occurred, Arnold transferred approximately twelve acres to a third party while retaining
approximately ten acres that he operated as a family farm. Between 1960 and 1967, Arnold
transferred portions of this farm land to his two oldest sons, Donald and Dwayne Rawlings.
The end result of these transfers was that both Donald and Dwayne received parcels
approximately one acre in size on which to build their homes. Arnold retained half an acre in
the northeast corner of the property where his house was located. Except for these assorted
parcels of land, the remainder of Arnold's property remained undivided until March 24,
1967. On that day, he transferred to Dwayne a small parcel approximately half an acre
immediately south of Donald's land-which Dwayne has held in trust for the other members
of the family. On the same day, Arnold transferred the remaining farm property to Donald,
in one undivided parcel, via a general warranty deed. In contrast to the siblings' claims that
Donald took the land as a trustee, Donald contends that this transfer was compensation for
his having paid certain debts on his father's behalf.
¶5 The March 24 land transfers happened at a time when Arnold's health had
substantially deteriorated. In October of the year before, he was diagnosed with cancer.
Later that year he underwent surgery to remove a large tumor. Although he labored to
recover from this surgery, Arnold began radiation treatments in January of 1967. He was
hospitalized twice in the coming months, and by March 24, his health was very poor.
¶6 The siblings contend that the purpose of transferring the farm property to
Donald was to facilitate his eligibility for welfare assistance. Sometime prior to December 16,
1966, Donald had contacted the State Welfare Department to discuss Arnold's eligibility, and
it became apparent that Arnold would receive assistance only if the farm property was not
held in his name. Thus, shortly before the March 24 transfers, Arnold discussed with LaRell,
his third oldest son, the need to take the property out of Arnold's name. They discussed the
best means to effect this, and LaRell suggested that the property be transferred to Dwayne
because LaRell believed Dwayne would be fair in his dealings with the family. Ultimately,
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Arnold decided to transfer the land to Donald instead. Arnold met once with LaRell and
Donald, and later with Dwayne and Donald, to discuss these plans. The trial court credited
this testimony and found that Donald offered no evidence to rebut it.
¶7 Around the time of the transfer, Donald and the siblings also conducted other
business relevant to the farm property. First, in January of that year, Donald began telling
Dwayne that Arnold needed approximately $1,000 to pay off the taxes on the farm. Dwayne
borrowed the funds to pay these taxes on his father's behalf and gave the money to Donald.
But it was not until the March 24 transfer was complete that Donald used this money to pay
off the back taxes. Second, on the same day that Arnold transferred the farm property to
Donald, the siblings and their spouses relinquished their interests in the farm property to
Donald via a quitclaim deed. Over time, the siblings also transferred neighboring parcels of
land to Donald to add to the trust property.
¶8 In the years after the transfer, Arnold continued to struggle with his health, but
also continued to manage and collect the profits from the farm property until his death in
1971. Indeed, in the fall of 1969, Arnold struggled to complete the harvest on his own. So,
the next spring, Arnold began corresponding with LaRell's commanding officers in the
military in the hopes of having LaRell temporarily released from his duties so he could return
and help with the maintenance of the farm. Arnold submitted notarized affidavits to this
effect, and had a number of people write letters in support of this effort. These documents
uniformly refer to the property as Arnold's Farm and refer to Arnold's efforts to harvest
crops and maintain the farm, and given his health, the difficulty he faced doing it alone.
¶9 In addition to managing the property as a farm, Arnold also managed family
affairs on the farm: when Arnold's youngest son, Bryce, sought to locate a mobile home on
farm property, it was Arnold's permission he sought, and it was Arnold who decided the best
location for the trailer. And less than a month after Arnold's death in 1971, Arnold's widow,
Cleo-not Donald-paid the property taxes on all of the farm property.
¶10 For years after Arnold's death, the farm property was managed in a manner
consistent with it being held in trust for the family. Bryce continued to live on the land for
four or five years after Arnold's death. Donald consistently represented to his siblings that
income from the farm property was being used to support their mother. Because of these
representations, all of the siblings, except Donald, worked in the orchard and helped to
maintain the farm property. When Donald was asked during his deposition which of the
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siblings contributed to the operation of the farm property, Donald answered, “All I know is
that I didn't.”
¶11 Arnold's 1957 transfer of twelve acres south of the farm property led to a
boundary dispute regarding the southern border of the farm property. During this dispute,
Donald's representations to the family reinforced the idea that this land was being managed
for the benefit of the family. Specifically, by 1974 a dispute had arisen over the location of
the border between the farm property and the land that Arnold had transferred in 1957.
Donald enlisted Dwayne to help erect a fence at the boundary line in the hopes of settling
this dispute and protecting what Donald referred to as “Mother's farm.” Donald also
induced his siblings to sign a quitclaim deed for the farm property. He told them that the
quitclaim deed encompassed only the land being disputed, but it actually described the entire
farm property. The trial court found that this quitclaim deed would have been unnecessary if
Donald had owned the property by virtue of the 1967 conveyance. Thus, it rejected Donald's
contention that the purpose of the quitclaim deed was to clear up the title problems on the
southern boundary. When Donald settled the boundary dispute for $52,000, he paid $500
each to Bryce and Carol Lynn (Arnold's only daughter), and $600 to Dwayne. He offered
$500 to LaRell, but LaRell refused to accept the money. Donald also spent $5,000 to prepay
burial funds for Cleo and to buy her a car.
¶12 Not until after 1993 were the siblings made aware that Donald considered the
land to be his own property. A dispute arose regarding a piece of the farm property that
formed part of the basis for a land exchange that Donald and Dwayne had undertaken in
1978. In exchange for a piece of industrial property valued at approximately $45,000, the two
brothers each contributed $15,000. A small piece of the farm property, valued at
approximately $15,000, constituted the remainder of their contribution. The industrial
property they received was eventually divided into northern and southern halves, with each
brother responsible for one of the halves. In 1993, Donald brought suit to establish himself
as the owner of two-thirds of this property. He alleged that he alone held title to the farm
property that formed part of the basis of the exchange. Alleging that Dwayne had no interest
in the farm property, Donald contended that his share of the industrial property should
reflect the fact that he contributed $15,000 worth of land and $15,000 in cash, whereas
Dwayne only contributed $15,000 in cash. The district court found that this suit, filed in
1997, was the first repudiation by Donald of his trust responsibilities. In response to
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Donald's suit to quiet title, Dwayne and the siblings filed counterclaims seeking imposition
of a constructive trust.
¶13 Donald's version of events surrounding the 1967 transfer of farm property
differs from that of the siblings. He contends that Arnold had mortgaged the farm property
prior to being diagnosed with cancer and that Donald rescued the land from foreclosure by
paying off his father's indebtedness. Thus, he contends that the deed transferring the land is
exactly what it purports to be on its face: a general warranty deed transferring fee simple
ownership. He contends that Arnold, prompted by Donald's payments of this indebtedness,
intended to give him the farm property free of any implicit trust obligation.
¶14 The trial court explicitly discredited this testimony for a number of reasons.
First, Donald had his own indebtedness with the same bank, and during the time when he
would have been paying off his father's debts, his payments to the bank did not increase in a
manner consistent with making additional payments. Second, after this litigation began,
Donald's wife, Jeanette, altered the cancelled checks to the bank by inserting notes on the
memo line to make it appear as though the checks were written to pay Arnold's mortgage.
Third, the evidence was not consistent with the possibility of imminent foreclosure, because
the bank had neither sent any notices of default (as it would have been required to do) nor
attempted to foreclose on two vehicles that were also part of the security for the loan.
¶15 Ultimately, the district court found the testimony of the siblings persuasive and
rejected Donald's version of events. It concluded that the purpose of the transfer was to
accommodate Arnold's attempts at becoming eligible for welfare, not in exchange for
payment of Arnold's debt and not to transfer ownership. It concluded the siblings had
presented clear and convincing evidence to support an “equitable need to impose a
constructive trust on the property.” It also concluded that Donald and Jeanette had been
unjustly enriched by keeping the $1,000 that Dwayne paid toward the property taxes, by
keeping the bulk of the $52,000 received from the settlement of the boundary dispute, and
by keeping “other benefits from the use and negotiations relative to the trust property.”
Thus, the trial court entered judgment in favor of the siblings, concluding that the March 24
conveyance to Donald, along with the relevant quitclaim deeds, created a constructive trust
on the property described therein.
¶16 The court of appeals reversed this judgment. It began by comparing the two
different theories under which a constructive trust may be imposed. One theory, which it
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called a “legal constructive trust,” requires no showing of unjust enrichment. Instead, it
concluded that in some cases a constructive trust is imposed to give effect to a grantor's
attempt to create an oral express trust. The court of appeals contrasted this sort of
constructive trust with “equitable constructive trusts,” which are imposed to remedy unjust
enrichment. It then determined that the trial court had failed to properly distinguish the two
and had essentially used unjust enrichment as a substitute for proof of an oral express trust.
It concluded that the siblings' case must succeed or fail based on whether they had proven
Arnold's intent to orally impose trust obligations. According to the court of appeals, either
Donald had violated Arnold's express wishes-which would make a legal constructive trust
the only appropriate remedy-or the farm property belonged to Donald, in which case he had
not been unjustly enriched by his years of ownership.
¶17 Having come to this conclusion, the court of appeals acknowledged that it
would normally be required to remand the case for factual findings regarding the elements of
a legal constructive trust. It did not do so, however, because such a claim requires the party
challenging a warranty deed to prove the intent to create a trust. But here, one of the trial
court's findings stated that “Arnold did not consider the conveyance to be a transfer of his
ownership rights in the property.” Relying on this finding of fact, the court of appeals
concluded that the siblings' claim must fail as a matter of law. It reasoned that if Arnold did
not intend to transfer ownership at all, then he could not have intended to create a trust
because creation of a trust requires that title to the property be transferred to a trustee. Thus,
it dismissed the siblings' claims as a matter of law and instructed the trial court to enter
judgment quieting title to the property in favor of Donald.
¶18 We granted certiorari to determine whether the court of appeals correctly
applied Utah's law of constructive trusts. Before us, the siblings argue that the court of
appeals erred in two ways. First, they argue that the court of appeals erred by interpreting the
trial court's finding of fact in isolation and in a manner inconsistent with its judgment. They
contend that the finding of fact regarding Arnold's intent to transfer ownership can, and
should, be interpreted to mean that Arnold intended to transfer bare legal title while
maintaining the beneficial interest in the land. They argue that such an interpretation would
support a constructive trust and that the court of appeals erred when it held that they could
not prevail on this claim. Second, the siblings argue that the success of the farm was based
on years of effort and contribution by everyone in the family. They rely on the trial court's
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findings regarding Dwayne's payment of back taxes, the contribution of labor by all of the
siblings to keep the farm operational, and the siblings' assistance during the 1978 boundary
dispute. All of these contributions, they contend, support a finding of unjust enrichment
because their efforts were undertaken in reliance on their belief that the land was being held
in trust for their benefit.
¶19 We conclude that the district court's findings were sufficient to support
imposition of a constructive trust. In deciding that the findings of fact regarding Arnold's
intent foreclosed the siblings from prevailing on a claim of unjust enrichment, the court of
appeals erred. The trial court acted within the bounds of its discretion in imposing a
constructive trust. Therefore, we reverse the judgment of the court of appeals.
STANDARD OF REVIEW
¶ 20 When reviewing cases pursuant to a writ of certiorari, this court reviews the
decision of the court of appeals, not that of the district court. The court of appeals' holding
that the siblings could establish neither an oral express trust nor unjust enrichment is a legal
determination that we review for correctness.
¶ 21 With regard to the imposition of a constructive trust, the availability of such a
remedy is also a question of law reviewed for correctness. But if such a remedy is available,
the “ ‘trial court is accorded considerable latitude and discretion in applying and formulating
an equitable remedy, and [it] will not be overturned unless it [has] abused its discretion.’ ”
¶ 22 Finally, because “[u]njust enrichment must remain a flexible and workable
doctrine.... we afford broad discretion to the trial court in its application of unjust
enrichment law to the facts.”
ANALYSIS
¶ 23 The siblings contend that the trial court was correct in imposing a constructive
trust, either as a means of giving effect to an oral express trust, or as a means of remedying
unjust enrichment. Thus, they argue that the court of appeals erred in two ways. First, they
argue that the court of appeals misinterpreted the trial court's findings of fact and that these
findings actually demonstrate Arnold's intent to create a trust to benefit the family. Second,
they argue that the trial court was correct in finding that Donald had been unjustly enriched
and that the court of appeals erred in holding otherwise. As such, they claim that the trial
court had discretion to award a constructive trust under either theory.
¶ 24 In addressing the siblings' claims, we keep a number of important principles in
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mind. First, we affirm our prior statement that “‘the forms and varieties of these trusts ... are
practically without limit.’ ” We also note that, in cases involving transfers of land, imposing a
constructive trust will often “alter a deed or other writing which is regular in form and is
presumed to convey a clear and unambiguous title.” We have recognized that altering deeds
in this way may make it difficult for a landowner to “rest in the security of his title to
property, however solemn might be the instrument on which it was founded.” To mitigate
this effect, we require that the evidence offered to overcome a deed must be “clear and
convincing.”
¶ 25 Even given this elevated burden of proof, we agree with the siblings with regard
to their claim for unjust enrichment. First, we hold that the court of appeals incorrectly
determined that the siblings must succeed or fail based solely on the intent underlying
Arnold's transfer of land. Rather, a claim for an oral express trust is independent from a
claim for unjust enrichment, and either claim may support imposition of a constructive trust.
Second, because unjust enrichment is a flexible doctrine and because trial courts have broad
discretion in fashioning remedies for unjust enrichment, we hold that the court of appeals
erred in reversing the trial court's award of a constructive trust. Because we affirm the trial
court's finding of unjust enrichment and its imposition of a constructive trust on that basis,
we need not determine whether the siblings also could have prevailed in their attempt to
establish an oral express trust. In order to explain our conclusions, we find it useful to
articulate the legal standards for the types of constructive trust at issue in this case.
I. Constructive Trusts Are a Remedy That May Be Imposed Where a Party Has Been
Unjustly Enriched or Where Necessary To An Oral Express
¶ 26 The siblings argue that a constructive trust may be imposed under either of two
distinct causes of action. One is a cause of action to establish an oral express trust. The other
is a claim for unjust enrichment. Oral express trusts have “certain fundamental
characteristics” in common with traditional trusts because, like traditional trusts, they are the
manifestation of a settlor's intent with regard to property. The main such characteristic is the
imposition of obligations on a trustee “to act for the benefit of [beneficiaries] as to matters
within the scope of the [trust].” Like trusts created by a valid writing, constructive trusts
imposed to give effect to oral express trusts are adequately characterized as “ ‘a fiduciary
relationship with respect to property, arising as a result of a manifestation of an intention to create
it and subjecting the person in whom the title is vested to equitable duties to deal with it for
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the benefit of others.’ ”
¶ 27 Where a transfer of land was made with the intent to create such a trust, the
trust will generally fail unless evidenced by a writing that complies with the Statute of Frauds.
Because oral express trusts do not meet these requirements, they will only be given effect in
“certain circumstances.” In these instances, the constructive trusts are deemed to “arise[ ] by
operation of law and [are] not within the statute of frauds.”
¶28 We have recognized that constructive trusts may be imposed in the
circumstances set forth in section 45 of the Restatement (Second) of Trusts (the
“Restatement of Trusts”). This section applies when the transferor of land intends for the
transfer to benefit someone other than the transferor or the transferee:
(1) Where the owner of an interest in land transfers it inter vivos to another in
trust for a third person, but no memorandum properly evidencing the intention
to create a trust is signed, as required by the Statute of Frauds, and the
transferee refuses to perform the trust, the transferee holds the interest upon a
constructive trust for the third person, if, but only if, (a) the transferee by
fraud, duress or undue influence prevented the transferor from creating an
enforceable interest in the third person, or (b) the transferee at the time of the
transfer was in a confidential relation to the transferor, or (c) the transfer was
made by the transferor in anticipation of death.
In short, the imposition of a constructive trust under this section of the Restatement
of Trusts requires proof that the transferor of land intended to create a trust and that one of
the three identified circumstances existed at the time of the transfer. And where proving this
intent will be contrary to an otherwise valid deed, the evidence of the trust must be clear and
convincing.
¶ 29 As with claims based on an oral express trust, claims of unjust enrichment can
support the imposition of a constructive trust. To this end, we have *763 adopted the
formulation set forth at section 160 of the Restatement of Restitution: “a constructive trust
may arise ‘where a person holding title to property is subject to an equitable duty to convey it
to another on the ground that he would be unjustly enriched if he were permitted to retain
it....’ ” A claim for unjust enrichment in Utah requires proof of three elements:
“(1) a benefit conferred on one person by another; (2) an appreciation or
knowledge by the conferee of the benefit; and (3) the acceptance or retention
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by the conferee of the benefit under such circumstances as to make it
inequitable for the conferee to retain the benefit without payment of its
value.”
We have also noted that unjust enrichment plays an important role as a tool of
equity: “[u]njust enrichment law developed to remedy injustice when other areas of the law
could not,” and therefore “must remain a flexible and workable doctrine.”
¶ 30 Because of the flexible nature of the unjust enrichment doctrine, a constructive
trust is an available remedy even in cases where a plaintiff might assert alternative legal
theories to support imposition of a constructive trust. Nothing about the constructive trust
that is imposed to give effect to an oral express trust does anything to preclude the
imposition of a constructive trust as a remedy to prevent unjust enrichment.
¶31 Indeed, in Parks v. Zions First National Bank, the plaintiff brought claims under
section 44 and 45 of the Restatement of Trusts, as well as a claim for unjust enrichment.
Although the trial court found the plaintiff's claim was not one for an oral express trust, we
affirmed the trial court's finding of unjust enrichment and its decision to impose a
constructive trust as a remedy. We also explicitly rejected the notion that a party seeking to
prove the existence of an oral express trust could not, where the facts would support it, also
seek recovery under a theory of unjust enrichment. Thus, our cases establish the availability
of both types of constructive trust sought in this case. And where the facts and law will
support it, a plaintiff may alternatively pursue both kinds of constructive trust within the
same lawsuit.
¶32 Having articulated the law as it relates to the siblings' claims, we now address the
issue presented in this case: whether the court of appeals erred in reversing the trial court's
imposition of a constructive trust. Because of the manner in which the court of appeals
resolved the issue, we first turn to the court of appeals' conclusion regarding oral express
trusts, and then examine the court of appeals' conclusion regarding unjust enrichment.
II. The Court of Appeals Erred in Basing Its Conclusion Solely On Whether Arnold
Intended to Create An Oral Express Trust
¶ 33 The court of appeals incorrectly concluded that, because the trial court's
findings did not support an oral express trust, the siblings could not prevail on a theory of
unjust enrichment. As discussed, our prior cases reveal two distinct legal causes of action
that the siblings were free to pursue in this case. To the extent they have alleged that Arnold
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intended to create a trust that would inure to their benefit, they have stated a claim
consistent with the cause of action set forth at section 45 of the Restatement of Trusts. If
the siblings successfully proved this case, the trial court could have imposed a constructive
trust on the farm property to give effect to Arnold's intent. To the extent that the siblings
have argued that Donald wrongfully retained the benefits of their contributions to the farm
property, they seek a remedy for unjust enrichment. Where a party has successfully proven
its case for unjust enrichment, the trial court has authority to impose a constructive trust as a
remedy.
¶ 34 In reviewing our prior cases and the court of appeals' opinion in this case, we
are satisfied that the court of appeals articulated these legal standards correctly, but that it
misconstrued the relationship between these causes of action. It determined that the siblings
had attempted to use the law of unjust enrichment as a substitute for the law of oral express
trusts. As such, it determined that the law imposed upon it a binary choice: either Arnold
intended that Donald take the land as trustee, or the actions Donald took during his years of
ownership were not unjust.
¶35 In fact, there is the potential for significant overlap in this case. If Arnold
intended that Donald take the land as trustee, then it was both inequitable and a violation of
the intended trust for Donald to retain for himself benefits that should have flowed to the
trust. In such a case, a constructive trust imposed to give effect to the oral trust would also
have remedied the related unjust enrichment. But even if the siblings could not prove
Arnold's intent to create such a trust, Donald's actions, as found by the trial court, are the
sort that would also support a claim of unjust enrichment. Assuming the siblings prevailed
on this theory, the constructive trust would not be imposed to give effect to Arnold's intent;
it would be imposed to give effect to the judgment of a court, sitting in equity, regarding
how best “to remedy injustice when other areas of the law [can] not.”
¶ 36 The court of appeals' departure from our case law appears to be the result of its
reliance on a single finding of fact interpreted in isolation. In its findings of fact, the trial
court states that “Arnold did not consider the conveyance to be a transfer of his ownership
rights in the property.” In its conclusions of law, the trial court reinforces this point: “The
deed transfer was for accommodation and not intended to transfer ownership rights to
Donald.” The court of appeals equated this finding with a finding that Arnold “did not
intend to transfer the farm into trust.” Thus, it concluded that this finding precluded any oral
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express trust and that a constructive trust therefore could not be imposed.
¶ 37 The siblings argue that the court of appeals simply misinterpreted this finding
of fact, and that it should be understood to mean that Arnold intended to transfer only legal
title to Donald, while establishing a beneficial interest for the family. The siblings' urged
interpretation is consistent with general trust principles: “The fundamental nature of a trust
is the division of title, with the trustee being the holder of legal title and the beneficiary that
of equitable title.” Thus, every time a settlor creates a trust there is some interest in the trust
res that is not transferred to the trustee. In fact, if ever the trustee also becomes the sole
beneficiary, all interests in the trust property will reside in the trustee and legal and equitable
title will merge. So, for Arnold to have intended to create a trust, he necessarily would have
intended to convey to Donald something less than his full ownership rights. Otherwise, no
equitable interest would be held on behalf of the beneficiaries.
¶38 The siblings also urge that the court of appeals' interpretation of this finding of
fact is an unreasonable construction of the trial court's judgment. After all, the siblings note,
the court of appeals' disposition of the case upheld Donald's ownership of the land. The
siblings argue that this is absurd because it is directly contrary to the finding of fact on which
the court of appeals relied. Given the alternative, they argue that the court of appeals had a
duty to interpret the trial court's findings in a manner favorable to its judgment.
¶39 Regardless of the merits of these arguments, if the siblings are to prevail on the
theory that Arnold intended to create an oral express trust, the siblings must not only
overcome this ambiguous finding of fact, they must also establish one of the other
circumstances set forth in section 45 of the Restatement of Trusts. They urge us to find that
Donald stood in a confidential relationship with respect to Arnold. There are some findings
of fact-relating to Arnold's deteriorating health, his anxiety regarding welfare coverage, and
Donald's role in the property transfer-that may support the conclusion that Donald and
Arnold had a confidential relationship. But there are also findings of fact that suggest
otherwise-LaRell and Dwayne both occupied positions of trust vis a vis their father and
participated in discussions about how best to handle the land transfer. The trial court's
conclusions of law do not address whether Donald's relationship with his father met our
standard for a confidential relationship. Further, unresolved issues remain regarding the
terms of the trust, including how Arnold's interest would have descended after his death.
¶40 We decline to address these questions for the first time on appeal. It is sufficient
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for our purposes to say that the court of appeals erred when it concluded that the siblings'
failure to prove an oral express trust necessarily precluded a finding in their favor under a
theory of unjust enrichment. Because the two claims may be pursued independently, we
need not determine whether the trial court's findings might support a claim under section 45
of the Restatement of Trusts. Rather, as will be discussed below, the court of appeals erred
in reversing the trial court's finding of unjust enrichment and its imposition of a constructive
trust as a means of remedying this unjust enrichment.
III. The Court of Appeals Erred in Holding That Donald Was Not Unjustly
Enriched By the Contributions His Siblings Made To the Farm Property Over
Several Decades
¶ 41 The court of appeals held that because Donald was the transferee under a deed,
his acceptance of his siblings' contributions to the land could not be unjust. In so holding,
the court of appeals erred. The standard for determining whether a person has been unjustly
enriched requires a court to determine whether the defendant accepted and retained benefits
conferred by the plaintiff under such circumstances as to make it inequitable for the
defendant to retain those benefits without compensating the plaintiff.
¶ 42 The court of appeals' conclusion does not adequately take into consideration the
circumstances under which Donald accepted many of the benefits conferred by his siblings.
As found by the trial court, the reason the siblings continued to work on the trust property
after Arnold's death was that Donald led them to believe it was their “Mother's farm.”
Dwayne paid $1,000 in property taxes with the understanding that Arnold needed the money.
He did not intend to pay off taxes on land that would soon be owned by Donald. And when
the siblings relinquished their interests via the 1978 quitclaim deed and contributed other
parcels of land to the farm property, they did so with the understanding that they were
assisting in clearing up title problems so that Donald could litigate the dispute on their
behalf. The trial court found all of these benefits, along with “other benefits from the use
and negotiations relative to the trust property,” to be conferred under circumstances that
gave rise to unjust enrichment.
¶ 43 We hold that these findings were sufficient to support the trial court's
imposition of a constructive trust. The first element of a claim for unjust enrichment-that
the siblings confer a benefit on Donald-has clearly been met. Further, as to the second
element, there can be no doubt that Donald was aware of these benefits. He acknowledged
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in his testimony that he knew that all of the siblings were contributing to the maintenance of
the farm property even though he was not. He redistributed small amounts of the settlement
proceeds to his siblings while keeping the bulk for himself. And he prompted Dwayne to pay
$1,000 toward the property taxes and made no attempt to return the money after Arnold
executed the deed purporting to transfer the land to Donald.
¶ 44 The dispute in this case centers on the third element of a claim for unjust
enrichment. The trial court found that, for decades, Donald represented to his siblings that
the farm property was being used to support their mother. Their contributions to the farm's
operation were made because they believed these representations. Arnold's management of
the farm in the years prior to his death reinforced the idea that the farm was considered a
family farm.
¶ 45 In a manner consistent with our precedent, we decline to weigh for ourselves
the relative equities of these actions. In Jeffs v. Stubbs, we announced our rationale for
granting trial courts broad discretion in imposing constructive trusts to remedy unjust
enrichment. The reasons for granting broad discretion articulated in Jeffs play an important
role in this case. First, determining whether the circumstances surrounding the parties'
interactions were inequitable is a fact-intensive process for which trial courts are uniquely
suited. The nature of this equitable determination requires balancing the ramifications of an
entire course of conduct. The trial court, having heard all of the evidence in context, is in the
best position to undertake this balancing. Second, cases of unjust enrichment require the trial
judge to “observe[ ] ‘facts,’ such as a witness's appearance and demeanor, relevant to the
application of the law that cannot be adequately reflected in the record available to appellate
courts.” We are keenly aware that trial courts are in the best position to make determinations
about credibility and veracity. This is especially the case where, as here, the legal standard
being applied requires the court to determine what is equitable. We are also mindful that all
of these observations will not necessarily be included in the record on appeal.
¶ 46 The court of appeals' decision does not appropriately defer to the trial court's
judgment with regard to the claim for unjust enrichment. Specifically, the court of appeals
concluded that the trial court had grafted equitable considerations into its inquiry regarding
Arnold's intent to create an oral express trust. But in so concluding, the court of appeals
rejected the theory of unjust enrichment as a valid, alternative, and independent theory on
which the trial court's imposition of a constructive trust could legitimately rest.
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¶ 47 Further, the court of appeals concluded that “the only wrongful act alleged by
the Siblings is [Donald's] failure to comply with Arnold's expressed intentions.” But this
clearly conflicts with the trial court's findings regarding the siblings' contributions to the
farm property and their understanding that Donald was acting in their interests. Even if
Donald was the legitimate owner of this property at all times after the 1967 transfer, he was
not unequivocally entitled to retain the fruits of his siblings' labor on the farm, the amount
of tax payments Dwayne made with the understanding they would be used for Arnold's
benefit, the value of the property transferred under the siblings' quitclaim deeds, the
settlement proceeds from the 1978 dispute that were retained by Donald, and contributions
by the siblings of other property to Donald.
¶ 48 Jeffs is instructive on this point as well. In that case, the United Effort Plan Trust
(the “UEP”) owned title to land. Members of a religious group affiliated with the trust were
permitted to occupy the land. The UEP encouraged these occupants to make improvements
to the land by leading them to believe they could occupy the land for their lifetimes. After
they were removed from the land, the occupants brought a number of claims, including
claims for unjust enrichment, against the UEP. The UEP defended on the grounds that,
because the occupants knew the UEP held title to the land when they made improvements,
it was not unjust for the UEP to keep those improvements even after the occupants were no
longer permitted to reside on the land. Relying on the Restatement of Restitution, we
rejected the UEP's position, and held that “an owner ‘cannot retain a benefit which
knowingly he has permitted another to confer upon him by mistake.’ ” The Restatement
position carries even more force in this case because here, unlike in Jeffs the siblings did not
know for decades that Donald claimed title to the land. Put simply, even if the court of
appeals correctly concluded that Donald owned the farm property, this did not insulate
Donald's conduct from being inequitable.
¶ 49 Thus, the court of appeals erred in reversing the trial court's judgment that
Donald had been unjustly enriched. The trial court found that a number of benefits had
been conferred on Donald by the siblings because of the siblings' understanding that the
land was being used as a family farm. Rather than assert his ownership of the land, Donald
accepted and retained these benefits. Given the broad discretion that we afford trial courts
when they apply the law to the facts in unjust enrichment cases, we hold that the court of
appeals erred in reversing the trial court's judgment. The trial court's legal conclusion was
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not absolutely precluded as the court of appeals determined, but was adequately supported.
We therefore reverse the judgment of the court of appeals, and affirm the trial court's
imposition of a constructive trust in favor of the siblings.
CONCLUSION
¶ 50 We hold that the trial court acted within the bounds of its discretion in
imposing a constructive trust in favor of the siblings. Unjust enrichment is a cause of action
separate from an attempt to prove the existence of an oral express trust. Thus, even if the
siblings have failed to prove the existence of an oral express trust in this case, something we
assume without deciding, they were still free to pursue their claim of unjust enrichment as an
independent cause of action. The trial court explicitly found that Donald had been unjustly
enriched, and numerous of its factual findings support that judgment. Given the broad
discretion that must necessarily be afforded trial courts when they apply the law of unjust
enrichment to the facts of a given case, we disagree with the court of appeals' conclusion
that imposition of a constructive trust was not an available or appropriate remedy in this
case. The judgment of the court of appeals is therefore reversed.
Notes, Questions and Problems
1. Students often confuse resulting trusts with constructive trusts. Both types of trusts are
remedial. One way to distinguish the types of trust is to focus upon the testator’s intent. In a
case involving a resulting trust, the court’s focus is on the actions of the trustee. If the
trustee acted as if he intended to create a trust, the court will act to carry out that intent.
Once the court finds a resulting trust, the trustee must surrender the property to the
beneficial owner upon demand. When deciding whether or not to establish a constructive
trust, the court evaluates the actions of the person who is in possession of the disputed
property. If that person has wrongfully acquired the property the court will create a
constructive trust. The court deems the property to be held in trust. The court considers the
person unjustly holding the property to be the trustee, and the person to whom the property
rightfully belongs to be the beneficiary.
2. Some courts hold that the constructive trust arises at the time the property is unjustly
obtained. Other courts have concluded that the constructive trust occurs only after the
beneficiary seeks a constructive trust and the court grants the relief. What are the pros and
cons of each approach?
3. Problems
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Label each of the following examples as a resulting trust or a constructive trust.
a). Olivia texted Thomas and told him she wanted to give him her house to hold in trust for
the benefit of her daughter, Melinda. Thomas texted her back and agreed to serve as the
trustee.
b). Paige executed a will containing the following language, “I leave the residuary of my
estate to Milena in trust for the benefit of my favorite actor.”
c) When Gail was a teenager, she put her baby girl up for adoption. Twenty years later,
Rosalinda came to Gail and claimed to be her birth daughter. Gail and Rosalinda developed
a relationship. Thus, Gail executed a will containing the following provision, “I leave
$500,000 to First Bank to hold in trust for my daughter, Rosalinda.” After Gail’s death, her
children received evidence that Rosalinda was a con woman who had lied about being Gail’s
birth daughter.
d) Raymond believed that his daughter, Lisa, was possessed by the devil because she liked to
gamble. Consequently, Raymond executed a will containing the following provision: “I leave
my entire establish to City Bank in trust for the benefit of the Church of Peace in order that
the demon can be cast out of my daughter, Lisa. After Lisa is demon-free, I would like her to
become a beneficiary of the trust.”
NOTE: Secret and Semisecret Trusts
Under some circumstances, courts have used constructive trusts to rectified unjust
enrichment that may result from a secret trust. For example, in her will, the testator makes
an outright gift to a third party and does not indicate the existence of a trust. However, prior
to the execution of the will, the third party agrees that he would hold the property in trust
for another person. This is considered a secret trust, so the court will admit outside
information to enforce the trust and prevent unjust enrichment. The facts of a semisecret
trust are different. In that case, in her will, the testator makes an outright gift to a third party,
and indicates in the will that the third party is to keep the gift in trust, but does not name the
beneficiaries in the will. This semisecret trust will fail for lack of beneficiaries. Since the trust
would fail, the third party would have no interest in the gift. Thus, a constructive trust is
unnecessary to prevent the third party from being unjustly enriched.
Example 1-Ruth’swill contained the following language: “I leave $100,000 to
Peter.” Ruth told her friend, Bonnie that she was leaving $100,000 to Peter
to keep in trust for Bonnie. The court will allow in oral testimony to prove
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the trust, so that Peter will not be unjustly enriched.
Example 2- Ruth’s will contained the following language: “I leave $100,000
to Peter in trust for people I told Bonnie about.” The court will not allow in
Bonnie’s oral testimony because the trust has been proven by the will, so
there is no danger of unjust enrichment. The trust fails for lack of
beneficiaries and money reverts back to Ruth’s estate to be distributed
accordingly.

Olliffee v. Wells, 130 Mass. 221
GRAY, C. J.
Upon the face of this will the residuary bequest to the defendant gives him no
beneficial interest. It expressly requires him to distribute all the property bequeathed to him,
giving him no discretion upon the question whether he shall or shall not distribute it, or shall
or shall not carry out the intentions of the testatrix, but allowing him a discretionary
authority as to the manner only in which the property shall be distributed pursuant to her
intentions. The will declares a trust too indefinite to be carried out, and the next of kin of the
testatrix must take by way of resulting trust, unless the facts agreed show such a trust for the
benefit of others as the court can execute. Nichols v. Allen, 130 Mass. 211. No other written
instrument was signed by the testatrix, and made part of the will by reference, as in Newton v.
Seaman’s Friend Society, 130 Mass. 91.
The decision of the case therefore depends upon the effect of the fact, stated in the
defendant's answer, and admitted by the plaintiffs to be true, that the testatrix, before and at
the time of and after the execution of the will, orally made known to the defendant her wish
and intention that the residue should be disposed of and distributed by him as executor of
her will for charitable uses and purposes, according to his discretion and judgment, and
directed him so to dispose of and distribute it, especially expressing her desire as to the
objects to be preferred, all which objects, taking the whole direction together, may be
assumed to be charitable in the legal sense.
In any view of the authorities it is quite clear, and is hardly denied by the defendant's
counsel, that intentions not formed by the testatrix and communicated to the defendant
before the making of the will could not have any effect against her next of kin. Thayer v.
Wellington, 9 Allen 283 Johnson v. Ball, 5 De Gex & Sm. 85. Moss v. Cooper, 1 Johns. & Hem.
352. But assuming, as the defendant contends, that all the directions of the testatrix set forth
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in the answer are to be taken as having been orally communicated to the defendant and
assented to by him before the execution of the will, we are of opinion that the result must be
the same.
It has been held in England and in other States, although the question has never
arisen in this Commonwealth, that, if a person procures an absolute devise or bequest to
himself by orally promising the testator that he will convey the property to or hold it for the
benefit of third persons, and afterwards refuses to perform his promise, a trust arises out of
the confidence reposed in him by the testator and of his own fraud, which a court of equity,
upon clear and satisfactory proof of the facts, will enforce against him at the suit of such
third persons. (citations omitted).
Upon like grounds, it has been held in England that, if a testator devises or
bequeaths property to his executors upon trusts not defined in the will, but which, as he
states in the will, he has communicated to them before its execution, such trusts, if for lawful
purposes, may be proved by the admission of the executors, or by oral evidence, and
enforced against them?? Crook v. Brooking, 2 Vern. 50,106. Pring v. Pring, 2 Vern?? 99. Smith v.
Attersoll, 1 Russ. 266. And in two or three comparatively recent cases it has been held that
such trusts may be enforced against the heirs or next of kin of the testator, as well as against
the devisee. Shadwell, V. C., in Podmore v. Gunning, 5 Sim. 485, and 7 Sim. 644. Chatterton, V.
C., in Riordan v. Banon, Ir. R. 10 Eq. 469. Hall, V. C., in Fleetwood's case, 15 Ch. D. 594. But
these cases appear to us to have overlooked or disregarded a fundamental distinction.
Where a trust not declared in the will is established by a court of chancery against the
devisee, it is by reason of the obligation resting upon the conscience of the devisee, and not
as a valid testamentary disposition by the deceased. Cullen v. Attorney General, L. R. 1 H. L.
190. Where the bequest is outright upon its face, the setting up of a trust, while it diminishes
the right of the devisee, does not impair any right of the heirs or next of kin, in any aspect of
the case; for if the trust were not set up, the whole property would go to the devisee by force
of the devise; if the trust set up is a lawful one, it enures to the benefit of the cestuis que trust;
and if the trust set up is unlawful, the heirs or next of kin take by way of resulting trust. Boson
v. Statham, 1 Eden, 508; S. C. 1 Cox Ch. 16. Russell v. Jackson, 10 Hare, 204. Wallgrave v. Tebbs,
2 K. & J. 313.
Where the bequest is declared upon its face to be upon such trusts as the testator has
otherwise signified to the devisee, it is equally clear that the devisee takes no beneficial
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interest; and, as between him and the beneficiaries intended, there is as much ground for
establishing the trust as if the bequest to him were absolute on its face. But as between the
devisee and the heirs or next of kin, the case stands differently. They are not excluded by the
will itself. The will upon its face showing that the devisee takes the legal title only and not
the beneficial interest, and the trust not being sufficiently defined by the will to take effect,
the equitable interest goes, by way of resulting trust, to the heirs or next of kin, as property
of the deceased, not disposed of by his will. Sears v. Hardy, 120 Mass. 524, 541, 542. They
cannot be deprived of that equitable interest, which accrues to them directly from the
deceased, by any conduct of the devisee; nor by any intention of the deceased, unless
signified in those forms which the law makes essential to every testamentary disposition. A
trust not sufficiently declared on the face of the will cannot therefore be set up by extrinsic
evidence to defeat the rights of the heirs at law or next of kin. See Lewin on Trusts (3d ed.)
75.
By the statutes of the Commonwealth, no will (with certain exceptions not material
to be here stated) “shall be effectual to pass any estate, whether real or personal, nor to
charge or in any way affect the same,” unless signed by the testator and attested by three
witnesses. Rev. Sts. c. 62, § 6. Gen. Sts. c. 92, § 6.
In Thayer v. Wellington, 9 Allen 283 the testator by his will bequeathed to Hastings and
Wellington $15,000 “in trust to appropriate the same in such manner as I may by any
instrument under my hand direct and appoint,” and nominated Hastings executor, and made
a residuary bequest to him in trust for the benefit of certain persons named. The testator
also signed a paper, dated the same day as the will, referring to it, and addressed to Hastings
and Wellington, directing them to pay over the $15,000 to the city of Cambridge for the
support of a public library; and they, after the death of the testator, signified in writing to the
city their intention of so paying it when they should receive it from the executor. After the
death of Hastings, upon a bill in equity by the administrator de bonis non for instructions, to
which Wellington, the city, the cestuis que trust, and the heirs at law of the testator, were made
parties, the court held that the clause in the will, the paper signed by the testator but not
attested as required by the statute of wills, and the assent in writing of the trustees, gave the
city no right to the fund; and that the heirs at law or next of kin would have been entitled to
it, but for its being included in the residuary bequest.
It appears in the report on file, upon which that case was reserved for the
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determination of the full court, that an attorney at law testified that he drew up both the will
and the paper at the request of Hastings, and delivered both drafts to him; and that
Wellington testified that the paper was handed to him by Hastings after the testator's death.
Those facts would, according to the cases of Crook v. Brooking and Smith v. Attersoll, above
cited, and which were relied on in the argument for the city of Cambridge, have been
sufficient evidence of an assent by Hastings before the execution of the will, and, according
to the decision of Vice Chancellor Wood in Tee v. Ferris, 2 K. & J. 357, would have entitled
the city to enforce the trust against both trustees. Yet the court did not treat them as of any
weight as between the surviving trustee and the city on the one hand, and the next of kin or
the residuary legatees on the other, but merely observed that it did not appear at what time
the paper was placed by the testator in the hands of Hastings. 9 Allen 288.
Decree for the plaintiffs.

3.2.3. Honorary Trusts
An honorary trust arises when a testator attempts to leave a large sum of money to a
pet. This money is not left to someone to care for the pet. The testator actually leaves the
money directly to the pet. Since a pet is incapable of inheriting, the court invalidates the
bequest to the pet. However, in order to carry out the testator’s intent to make sure that the
pet is take care of properly, the court will create an honorary trust over the property that was
left to the pet. Unlike a charitable trust for a group of animals or a bequest to the SPSA, a
honorary trust comes into play when a bequest is made to provide for a specific animal or
object. In addition to the care of a pet, honorary trusts may be created for the preservation
of tombs, monuments, or graves, and for the saying of masses or the erecting of a statutes.
This trust is deemed to be honorary because it is binding on the conscience of the trustee.
The beneficiary is unable to demand an accounting from the trustee, so the trustee must act
on his or her honor. The honorary trust is not enforceable by an identifiable beneficiary, but
it is treated as valid so long as the trustee chooses to carry out the trust purpose. As the next
case illustrates, when and if the trustee no longer wishes to do so, the trust terminates and
the court will create a resulting trust.

Phillips v. Estate of Holzmann, 740 So. 2d 1
GERSTEN, J.
Jo Ellen Phillips (“appellant”) appeals an order requiring her to return $25,000.00,
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paid to her under Marie M. Holzmann's (the “testator”) will, to the testator's estate. We
affirm because the appellant received the $25,000.00 in trust for a specific non-charitable
purpose and that purpose no longer exists.
In her will, the testator left $25,000.00 to her “beloved friend,” the appellant, “for
the care and shelter of [her] two dogs, Riley and Shaun.” Shortly after the testator's death,
however, Riley and Shaun were put to sleep for health reasons. Due to this turn of events,
the testator's parents petitioned to have the $25,000.00 returned to the estate.
The trial court concluded that the appellant received the $25,000.00 as an “honorary
trust” and that the honorary trust failed when the dogs were put to sleep. Upon failure, the
court determined, the trust became a “resulting trust” for the benefit of the estate's residual
beneficiaries. We agree with the trial court's analysis.
The polestar in construing any will is to ascertain the intent of the testator. See West
v. Francioni, 488 So.2d 571 (Fla.3d DCA 1986); Hulsh v. Hulsh, 431 So.2d 658 (Fla.3d DCA
1983), review denied, 440 So.2d 352 (Fla. 1983). Here, the testator unambiguously directed that
the money was for the benefit of her dogs, not the appellant. She, thus, intended to establish
an honorary trust. See In re Searight's Estate.; Dep’t of Taxation of Ohio v. Miller, Ohio App. 417,
95 N.E. 2d 779 (1950); Restatement (Second) of Trusts § 124 cmt. d (1959); John G.
Grimsley, Florida Law of Trusts 18-2 (4th ed.1993).
A trust of this sort is not a true trust. See e.g. The Fidelity Title and Trust Co. v. Clyde, 143
Conn. 247, 121 A.2d 625 (1956). It does not conform to the time-honored requirement that
there be a beneficiary capable of enforcing its terms. See The Fidelity Title and Trust Co. v. Clyde,
121 A.2d at 630. Nonetheless, the American Law Institute takes the position that the
transferee has the power to apply the property to the designated purpose, but cannot be
compelled to do so. See Restatement (Second) of Trusts § 124 (1959). If the transferee does
not apply the property to its designated purpose, she holds it upon a resulting trust for the
settlor or the settlor's estate. See Restatement (Second) of Trusts §§ 124 b; 418 cmt. b (1959).
We adopt the American Law Institute's position regarding honorary trusts.
Because the testator's dogs were put to sleep, the appellant/transferee could not
apply the $25,000.00 to the designated purpose. A resulting trust was thereby created and the
trial court properly ordered the appellant to return the property to the estate. The judgment
is affirmed in all respects.
NOTE: STATUTORY HONORARY TRUSTS
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Honorary trusts were the common law solution to the ‘rich pet” dilemma. Currently,
many states have codified the honorary trust. The following statute is a typical example.
McKinney’s EPTL § 7-8.1 Trusts for Pets
(a) A trust for the care of a designated domestic or pet animal is valid. The intended use of
the principal or income may be enforced by an individual designated for that purpose in the
trust instrument or, if none, by an individual appointed by a court upon application to it by
an individual, or by a trustee. Such trust shall terminate when the living animal beneficiary or
beneficiaries of such trust are no longer alive.
(b) Except as expressly provided otherwise in the trust instrument, no portion of the
principal or income may be converted to the use of the trustee or to any use other than for
the benefit of all covered animals.
(c) Upon termination, the trustee shall transfer the unexpended trust property as directed in
the trust instrument or, if there are no such directions in the trust instrument, the property
shall pass to the estate of the grantor.
(d) A court may reduce the amount of the property transferred if it determines that amount
substantially exceeds the amount required for the intended use. The amount of the
reduction, if any, passes as unexpended trust property pursuant to paragraph (c) of this
section.
(e) If no trustee is designated or no designated trustee is willing or able to serve, a court shall
appoint a trustee and may make such other orders and determinations as are advisable to
carry out the intent of the transferor and the purpose of this section.
Class Discussion Tool
Stacie and Abigail met while they were in medical school and became best friends.
Years later, Stacie and her husband, Robert, were involved in an ugly divorce. Stacie wanted
to make sure that Robert did not get an interest in her vacation home. Thus, Stacie
quitclaimed the vacation home to Abigail. Abigail promised to return the vacation home to
Stacie once the divorce was final. At that time, Stacie also put $500,000 and a house in a
revocable trust for the benefit of her children, Mitchell and LaTrell. Stacie selected Abigail to
be trustee of the revocable trust. Stacie kept the $500,000 in her bank account. Stacie mailed
Abigail a picture of the house that was to be part of the corpus of the trust. After Stacie’s
divorce was final, she discovered that Abigail was having an affair with Robert. The women
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had a big fight, and Abigail refused to return the vacation home to Stacie. What are the legal
issues that arise from the fact pattern?

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Chapter 4 - Discretionary and
Support and the Rights of the
Beneficiary’s Creditors
There are several types of private trusts. In this chapter, I will discuss several of the
most common types. One of the primary legal issues that arises as a consequence of the
existence of trust is whether the beneficiary’s creditors can attach the funds in the trust.
Frequently, distributions from the trust may be the beneficiary’s only source of income.
Therefore, getting access to the trust funds may be the sole way for the creditor to get paid.
In this chapter, I will describe the types of trusts in relation to the creditor’s ability to get
paid. A mandatory trust is one that mandates the trustee to distribute all the income and
does not give the trustee the discretion to choose either the beneficiaries or the amount to
be distributed. The trustee’s sole job is to manage and disperse the trust funds. An example
would be: T leaves $500,000 in trust to X to distribute $20,000 of the income to A and B
annually. A and B can go to court to force the trustee to give them the promised amount.
The money in a mandatory trust is similar to earned income, so the beneficiary’s creditor can
file an action against the trust for the amount of the debt.

Lineback v. Stout, 339 S.E.2d 103
WELLS, Judge.
Respondent argues that it was the testator's intention in Article IV of his will to
create a discretionary trust wherein payments to petitioner were to be in the sole discretion
of the trustee and that the superior court erred in ruling to the contrary. A discretionary trust
is a trust wherein the trustee is given the discretion to determine whether and to what extent
to pay or apply trust income or principal to or for the benefit of a beneficiary. Bogert, The
Law of Trusts and Trustees § 228 (rev. 2d ed. 1979); Scott, The Law of Trusts §§ 128.3, 155 (3d
ed. 1967). Accord N.C. Gen. Stat. § 36A-115(b)(1) (1984). Under a true discretionary trust, the
trustee may withhold the trust income and principal altogether from the beneficiary and the
beneficiary, as well as the creditors and assignees of the beneficiary, cannot compel the
trustee to pay over any part of the trust funds. Bogert, supra; Scott, supra, at § 155. A trust
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wherein the trustee has discretion only as to the time or method of making payments to or
for the benefit of the beneficiary is not a true discretionary trust. Bogert, supra; Scott, supra.
Whether a trust is a discretionary one naturally depends upon the nature of the
powers conferred upon the trustee, that is, whether the powers are mandatory or
discretionary, and if discretionary, the extent of the discretion afforded the trustee. In
determining the nature of the powers conferred upon a trustee, we are guided by the
following:
The powers of a trustee are either mandatory or discretionary. A power is mandatory
when it authorizes and commands the trustee to perform some positive act.... A power is
discretionary when the trustee may either exercise it or refrain from exercising it, ... or when
the time, or manner, or extent of its exercise is left to his discretion. [Citations omitted.]
Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639 (1951).
The court further explained:
The court will always compel the trustee to exercise a mandatory power. ... It is
otherwise, however, with respect to a discretionary power. The court will not undertake to
control the trustee with respect to the exercise of a discretionary power, except to prevent an
abuse by him of his discretion. The trustee abuses his discretion in exercising or failing to
exercise a discretionary power if he acts dishonestly, or if he acts with an improper even
though not a dishonest motive, or if he fails to use his judgment, or if he acts beyond the
bounds of a reasonable judgment. [Citations omitted.] Id.
Whether a power is mandatory or discretionary depends upon the intent of the
settlor as evidenced by the terms of the trust. See Bogert, supra, at § 552; Scott, supra at § 187.
The intent of a settlor is determined by the language he chooses to convey his thoughts, the
purposes he seeks to accomplish and the situation of the parties benefitted by the trust.
Davison v. Duke University, 282 N.C. 676, 194 S.E.2d 761 (1973). Use by the settlor of words
of permission or option, or reference to the discretion of the trustee, in describing the
trustee's power indicates that the settlor intended that the power be discretionary, whereas
use of directive or commanding language indicates that a mandatory power was intended. See
Bogert, supra, at § 552. Compare Woodard v. Mordecai, supra, and First National Bank of Catawba
County v. Eden, 55 N.C.App. 697, 286 S.E.2d 818 (1982) (discretionary power) with Kuykendall
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v. Proctor, 270 N.C. 510, 155 S.E.2d 293 (1967) (mandatory duty). Where the power is
discretionary, the extent of the discretion given the trustee may be enlarged by use of
adjectives such as “absolute” and “uncontrolled.” Davison v. Duke University, supra.
The language of the testamentary trust in the present case clearly indicates that the
testator intended for the power given respondent as trustee to be discretionary. The testator,
in granting respondent the power to distribute the trust income or principal, referred to the
“sole judgment” or “discretion” of respondent six times. Such language is used both with
reference to the net income and the principal of the trust, thus indicating that the testator
intended for respondent to have discretion regarding the distribution of both. This is made
particularly clear by the fact the testator referred to respondent's discretion twice in the first
sentence of the trust provisions-the first time possibly referring only to the trust principal
but the second time apparently referring to both the net income and the principal of the
trust. That respondent's power is discretionary is also shown by the fact the testator
authorized respondent to pay the trust income or principal to or for the benefit of petitioner
but did not command or require her to do so. Rather, the testator directed respondent to
exercise her discretion regarding the distribution of the trust funds. The testator's use of the
adjectives “absolute” and “uncontrolable” [sic] to describe the discretion vested in
respondent further emphasizes the discretionary nature of the power granted respondent
and evidences the testator's intent to vest wide discretion in respondent. To hold that
respondent's power to distribute trust income or principal to petitioner is mandatory, as did
the superior court in effect, we would have to ignore totally the references made by the
testator to respondent's discretion in setting forth that power. This we cannot and will not
do.
The language and terms of the trust further show that the discretion vested in
respondent extends to whether and to what extent to pay the trust income or principal to or
for the benefit of petitioner. The amount of trust income or principal to be expended for
petitioner's benefit is to be determined by respondent in her sole discretion. We emphasize,
however, respondent's duty to exercise her judgment reasonably to carry out the intent of
the testator. Woodard v. Mordecai, supra.
The terms of the trust also show that the testator intended for the trust funds to be
used to supplement, rather than supplant, the financial assistance which petitioner was
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receiving from the Department of Social Services. Petitioner was receiving the Department's
financial assistance at the time the testator executed his will. The testator was apparently
referring to that assistance when he provided for respondent's consideration of “income
available to [petitioner] from other sources” in determining whether to distribute trust
principal to petitioner. Such provision certainly tends to show that the testator did not
intend for the trust funds to be used as a substitute for the public assistance. Accord Zeoli v.
Commissioner of Soc. Serv., 179 Conn. 83, 425 A.2d 553 (1979). The creation of the trust for
“the lifetime” of petitioner and the provision for the distribution of the trust corpus
remaining upon petitioner's death also reveal the testator's intent that the trust funds be used
to provide supplemental, rather than total, support for petitioner. Accord Tidrow v. Dir., Mo.
State Div. of Fam. Servs., 688 S.W.2d 9 (Mo.App. 1985). These terms of the trust show that the
testator intended and anticipated that the trust corpus might not be completely exhausted
during petitioner's lifetime. Id. In order to effectuate this intent, respondent's power to
distribute the trust funds to petitioner must be interpreted as discretionary. If respondent's
power is interpreted as mandatory, the trust fund will be rapidly depleted and the testator's
intent will be thwarted.
We conclude that the testamentary trust is a discretionary one and that therefore the
superior court erred in requiring respondent to expend funds from the trust for the general
welfare, support, maintenance and benefit of petitioner. The judgment of the superior court
is
Reversed.

4.1

Discretionary Trusts
The testator who has more confidence in the trustee may give that person more

discretion. Under the terms of a discretionary trust, the trustee has discretion over payments
of either the income or the principle or both. In some cases, the trustee has the discretion to
choose the specific beneficiaries from a group that the trustee indicates. Unlike the
mandatory trust beneficiaries, the beneficiaries of a discretionary trust cannot force the
trustee to pay out any of the trust funds. This is an important distinction because if the
beneficiary has no right to a payment from the trust, neither does the beneficiary’s creditors.
Thus, a creditor of the beneficiary cannot by judicial order, compel the trustee to pay him.
Nonetheless, the creditor is not without a remedy because of the existence of the cutting off
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income rule. According to that rule, if the trustee exercises his discretion and pays the
beneficiary, the trustee must pay the creditor who stands in the beneficiary’s shoes. The lien
attaches the moment in time between when the trustee exercises his discretion to pay the
beneficiary and the time the property is transferred to the beneficiary. This rule also applies
when the trustee pays money on the beneficiary’s behalf.

Wilcox v. Gentry, 867 P.2d 281
MCFARLAND, Justice:
Ron and Nancy Wilcox appeal from the district court's judgment holding that any
payments made by the trustee of the Frank Gentry Trust (Trust) which are made for the
benefit of Isabella Gentry and not paid directly to Isabella, are not subject to garnishment.
The Court of Appeals affirmed the judgment appealed from, but reversed, sua sponte, a
continuing garnishment order entered by the district court relative to payments made by the
trustee directly to Isabella. Gentry 18 Kan.App.2d 356, 853 P.2d 74. The matter is before us
on petition for review.
In 1985, Frank Gentry created a revocable Trust. During his lifetime, Frank was the
beneficiary of the Trust. Upon Frank's death certain trust property was to be distributed to
named individuals. The residue of the Trust's assets was to be divided into five equal shares.
Four of these shares were to be distributed to the four individuals designated as their
recipients. This action concerns the fifth share. The applicable Trust provision in Article III,
Section D.5, is as follows:
“(e) One share shall remain in trust until the death of Isabella Gentry. The
trustee, in his sole discretion, may make such distributions of income and
principal to her or on her behalf as the trustee deems advisable after giving due
consideration to all sources of funds available to her. Upon the death of
Isabella Gentry, the trust shall terminate and the balance of the trust and
accumulated income shall be distributed to the then surviving beneficiaries in
proportion to the beneficial interests they would have been entitled to, under
D. 5.(a), (b), (c) and (d) above, had Grantor died on the actual date of Isabella
Gentry's death. In the event Isabella Gentry should predecease the Grantor,
this share shall be equally divided between Mary Margaret Gentry and Eric
Gentry, or pass fully to the survivor.”
The district court and the Court of Appeals characterized the Trust provisions
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applicable to Isabella Gentry in (e) as being discretionary in nature. This determination is
unchallenged herein and we agree we are dealing with a discretionary trust. The Trust
contains no spendthrift provision.
Ron and Nancy Wilcox obtained a judgment against Isabell Gentry for fraud in the
sale of a residential property. Their judgment was for $40,000 actual damages and $11,667.35
punitive damages. They garnished the Trust to seek satisfaction of their judgment. Frank
Gentry, grantor and sole beneficiary during his lifetime, had died previously, thereby
activating section 5(e) relative to Isabell.
The district court held that any trustee payments directly to Isabell were subject to
garnishment but that trustee payments for Isabell's benefit were not. The propriety of the
district court's determination relative to payments made for Isabell's benefit is the only
aspect of the judgment from which an appeal was taken.
The Court of Appeals' affirmance of the district court was based, in part, upon our
case of State ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 822 P.2d 1033 (1991). Reliance on
Jackson is misplaced. Jackson involved an action by SRS, pursuant to K.S.A. 39-719b, to
compel the Jackson Trust beneficiary to reimburse SRS for public assistance benefits she had
received. The Trust was not a party to the action, and the trustee was not being asked to pay
anything to SRS. The issue was whether or not the trust had been an “available resource” to
Jackson at the time she was receiving public assistance funds for purposes of determining
her eligibility for such SRS benefits. Thus, the spendthrift provisions of the Jackson Trust
were irrelevant. The case involved only Jackson's interest in the trust. We held that the trust
was discretionary as to payments of principal but not discretionary as to income. Thus, as
Jackson had the right to receive the trust income, such income was an available resource to
Jackson in determining her eligibility for public assistance.
In Jackson we cited Restatement (Second) of Trusts § 155(1) (1957) and comment (b),
which provide:
“(1) Except as stated in § 156, if by the terms of a trust it is provided that the
trustee shall pay to or apply for a beneficiary only so much of the income and
principal or either as the trustee in his uncontrolled discretion shall see fit to
pay or apply, a transferee or creditor of the beneficiary cannot compel the
trustee to pay any part of the income or principal.
“Comment b: “A trust containing such a provision as is stated in this Section
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is a ‘ discretionary trust’ and is to be distinguished from a spendthrift trust,
and from a trust for support. In a discretionary trust it is the nature of the
beneficiary's interest rather than a provision forbidding alienation which
prevents the transfer of the beneficiary's interest. The rule stated in this
Section is not dependent upon a prohibition of alienation by the settlor; but
the transferee or creditor cannot compel the trustee to pay anything to him
because the beneficiary could not compel payment to himself or application
for his own benefit.”
Section 155(1) was pertinent to Jackson as we were concerned with the interest of the
beneficiary to the trust and her concomitant ability to compel payment to her.
In the case before us, the issue is not whether the trustee can be compelled to pay
income or principal. The issue before us is, if the trustee exercises its discretion and makes a
payment on behalf of the beneficiary, whether such payment is subject to the creditors'
garnishment.
This makes Restatement (Second) of Trusts § 155(2,) rather than (1), the applicable
statement, as it provides:
“(2) Unless a valid restraint on alienation has been imposed in accordance with
the rules stated in §§ 152 and 153, if the trustee pays to or applies for the
beneficiary any part of the income or principal with knowledge of the transfer or
after he has been served with process in a proceeding by a creditor to reach it, he
is liable to such transferee or creditor.”
As previously stated, there is no valid restraint on alienation (spendthrift provision)
involved herein. This section makes no distinction between payments directly to the
beneficiary or on the beneficiary's behalf.
Pertinent comments to subsection (2) are found therein as follows:
“h. Effect of payment by trustee to beneficiary after assignment. Although in the case of
a discretionary trust a transferee or creditor of the beneficiary cannot compel
the trustee to pay over any part of the trust property to him, yet if the trustee
does pay over any part of the trust property to the beneficiary with
knowledge that he has transferred his interest or after the trustee has been
served with process in a proceeding by a creditor of the beneficiary to reach
his interest, the trustee is personally liable to the transferee or creditor for the
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amount so paid, except so far as a valid provision for forfeiture for alienation
or restraint on alienation has been imposed as stated in §§ 150, 152 and 153.
“i. Effect of applying property by trustee for beneficiaries after assignment. If the trustee
applies for the benefit of the beneficiary income or principal, he is liable to
an assignee of the beneficiary's interest or to a creditor of the beneficiary, if
he makes such application after he has knowledge of the assignment or after
he has been served with process in a proceeding brought by a creditor of the
beneficiary to reach the beneficiary's interest.”
In IIA Scott on Trusts § 155.1, p. 160-61 (4th Ed.1987), the following pertinent
discussion
appears: “Although the trustee need not pay any part of the trust fund to the beneficiary or
to his creditors, but may withhold it entirely, but if he does determine to pay part of it to
him, he should pay it to the creditors who now stand in his shoes. The English courts,
however, have here made a distinction. They have held that the trustee can properly apply the
trust fund for the use of the beneficiary even though he is bankrupt or his creditors have
brought a proceeding to reach his interest.
In In re Smith [,(1928), 1 Ch. 915, 919], Romer, J., said:
‘Where there is a trust to apply the whole or such part of a fund as trustees
think fit to or for the benefit of A., and A. has assigned his interest under the
trust, or become bankrupt, although his assignee or his trustee in bankruptcy
stand in no better position that he does and cannot demand that the fund
shall be handed to them, yet they are in a position to say to A.: “Any money
which the trustees do in the exercise of their discretion pay to you, passes by
the assignment or under the bankruptcy.” But they cannot say that in respect
of any money which the trustees have not paid to A. or invested in
purchasing goods or other things for A., but which they apply for the benefit
of A. in such a way that no money or goods ever gets into the hands of A.’
The distinction thus drawn between payment to the beneficiary and applying
trust funds for his benefit seems to be arbitrary and without any sound basis
in public policy. The result is that the beneficiary is enabled to enjoy the
benefit of the trust in spite of his insolvency, as long as the trustee is willing
to apply the trust estate for his benefit.”
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In Bogert, Trust and Trustees § 228, pp. 524-32 (Rev.2d Ed. 1992), distinctions
between discretionary and spendthrift trusts are discussed, and the following is stated relative
to a creditor's ability to reach trust funds:
“If the trust is a true ‘ discretionary’ trust, the nature of the interest of the
beneficiary, rather than any expressed restraint on his power to alienate or the
rights of his creditors, determines questions of voluntary or involuntary
alienation. The beneficiary cannot secure the aid of a court in compelling the
trustee to pay or apply trust income or principal to him since the terms of the
trust permit the trustee to withhold payments at his will. Until the trustee elects
to make a payment the beneficiary has a mere expectancy. Nor can a creditor
compel the trustee to exercise his discretion to make payments. If the
beneficiary attempts to transfer his interest, or his creditors seek to take it,
before the trustee has made an election to pay or apply, the transferee or
creditor has no remedies against the trustee because he stands in the shoes of
the beneficiary.
“If, however, the trustee exercises his discretion by making a decision to pay to
or apply for the beneficiary, then the beneficiary can force the trustee to confer
such a benefit on him, and he can transfer his right and his creditors can take
advantage of it, if the trust does not have a spendthrift clause. If the trustee
receives notice of an attempted voluntary transfer, or is served with process by
a creditor of the beneficiary, before the making of his decision to allocate trust
property to the beneficiary, he will be liable to the assignee or creditor if he
thereafter uses his discretion and elects to pay to the beneficiary. In such a case
his duty is to pay to the assignee or creditor if he decides to pay or apply,
unless the discretionary trust instrument contains a spendthrift clause, or a
statute gives rights to the creditor as in the case where the surplus of income
over that needed for support is made liable to creditors.”
The above-cited treatises are persuasive. We see no valid reason for treating
payments to a beneficiary differently from payments made on behalf of the beneficiary as far
as creditors are concerned. If the creditor has the right to reach payments made to the
beneficiary excluding payments made on behalf of the beneficiary serves only to encourage
circumvention of that right. We adopt Restatement (Second) of Trusts § 155(2) and find it
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determinative of this issue. The district court and the Court of Appeals erred in holding that
only funds paid directly to a discretionary trust beneficiary are subject to garnishment by a
creditor.
In their petition for review, Ron and Nancy Wilcox object to the Court of Appeals'
reversal, sua sponte, of the district court's continuing order of garnishment as to funds paid
directly to the beneficiary.
The Wilcoxes did not appeal from this part of the judgment as it was in their favor.
No cross-appeal was filed.
The order of continuing garnishment entered herein as to funds paid directly to the
beneficiary was in no way an inherent part of the sole issue on which the appeal was taken or
necessary to the determination of that issue. Even if such had been the situation, the parties
should have been afforded the opportunity to brief the sua sponte issue.
The judgment of the Court of Appeals is reversed. The judgment of the district court
is reversed, and the case is remanded for further proceedings.
Notes, Questions and Problems
1. Like the beneficiary of any other trust, the beneficiary of a mandatory trust is a person
who may be vulnerable. Further, the money in the trust belongs to the settlor. Consequently,
should the beneficiary’s creditors be able to touch the funds in the trust?
2. The cutting off rule is designed to insure that the beneficiary of a discretionary trust is
unable to avoid paying his creditor once he receives trust funds. Once the funds are in the
beneficiary’s hands, the creditors should be able to be paid.
3. Problems
In which of the following cases is the cutting off income rule triggered:
a). The trustee pays the beneficiary’s electricity bill using the trust funds.
b). The trustee buys the beneficiary an American Express gift card using the trust funds.
c). The trustee buys the beneficiary a diamond ring using the trust funds.
d). The trustee gives the beneficiary’s $20,000 from the trust.

4.2.

Support Trust
The purpose of a support trust is to ensure that the beneficiary’s financials needs are

met. The support trust can be either pure or discretionary. A pure support trust is one that
requires the trustee to use the funds in the trust to support the beneficiary by paying specific
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bills. The trustee’s discretion is limited. He must use the trust funds only for the beneficiary’s
support. Under the terms of a discretionary support trust, the trustee has the discretion to
decide how much of the trust funds are needed to support the beneficiary. The trustee’s
discretion may be limited by a support standard. For instance, the trust instrument may
require the trustee to provide the beneficiary with a reasonable standard of living or to
enable the beneficiary to maintain the lifestyle to which he has become accustomed. When
exercising his discretion with regards to distributing money to the beneficiary, the trustee has
a duty to inquire to determine the amount of support that the beneficiary needs. Since the
purpose of the trust is to provide support for the beneficiary, he cannot alienate his interest
in the trust. Thus, the beneficiary’s creditors cannot attach the funds in the trust. However,
creditors who supply the beneficiary with necessaries like medicine may recover from the
trust. In a growing number of jurisdictions, the children and spouses of the beneficiary of a
support trust may enforce claims for child support and alimony.

In the Matter of the Barkema Trust, 690 N.W. 2d 50
CADY, Justice.
In this appeal, we must decide if the corpus of a support trust is included in the
estate of the beneficiary of the trust upon death for purposes of a claim for recovery of
Medicaid benefits provided to the trust beneficiary during her lifetime for nursing home
care. The district court found the trust was included within the estate. Upon our review, we
affirm.
I. Background Facts and Proceedings
George Barkema established a trust in his will. He left one quarter of the residue of
his estate to three of his children, Richard, Doris, and Rose, to hold in trust for his fourth
child, Lois. His will directed, “If possible, only the income from said share shall be used for
Lois, however, if necessary for her proper support and maintenance, then the corpus of said
trust may be invaded to the extent said trustees deem necessary.” George's will failed to
specify what was to become of the remainder of the trust corpus after Lois's death. After
George died, his children entered into an agreement providing that in the event of Lois's
death, the trust corpus was to be distributed in equal shares to Lois's children, Dianne Gille
and Gayle Torgenson. This agreement was filed with the court in 1978.
Years later, Lois began living in a nursing home. In 1998, Richard helped her apply
for Title XIX Medicaid to pay for her medical expenses. Between the time when Lois began
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receiving Medicaid benefits and her death on April 14, 2003, the State Medicaid program
paid approximately $55,000 for her care. However, the State never attempted to obtain
income payments from the trustee or compel the trustee to invade the corpus for Lois's
support during Lois's lifetime.
On June 2, 2003, Richard, as trustee, filed a final report, recommending that the
remaining corpus of the trust (approximately $18,000) be distributed to Dianne and Gayle,
pursuant to the 1978 agreement between the siblings. On June 25, 2003, Health
Management Systems, Inc., on behalf of the Iowa Department of Human Services
(hereinafter the Department), filed both a claim in the trust and an objection to the final
report. It claimed it was entitled to the remaining corpus of the trust under Iowa code
section 249A.5(2) (2003). On October 8, 2003, the district court granted the Department's
claim and ordered Richard to pay to it the remaining corpus of the trust and interest thereon.
The district court based its decision on policy reasons and on what it perceived to be
George's intent. Dianne and Gayle appeal.
II. Standard of Review
This case was tried by the probate court in equity. See In re Roehlke’s Estates, 231
N.W.2d 26, 27 (Iowa 1975) (“A hearing on objections to a fiduciary's final report is an
equitable proceeding.” (Citations omitted.)); see also Iowa Code § 633.33 (2003) (stating that
all matters are tried by the probate court in equity other than will contests, involuntary
proceedings to appoint guardians or conservators, and establishment of contested claims).
Accordingly, our scope of review is de novo. Iowa R .App. p. 6.4.
III. Discussion
Iowa Code section 249A.5(2) provides:
The provision of medical assistance to an individual who is fifty-five years of
age or older, or who is a resident of a nursing facility, intermediate care
facility for persons with mental retardation, or mental health institute, who
cannot reasonably be expected to be discharged and return to the individual's
home, creates a debt due the department from the individual's estate for all
medical assistance provided on the individual's behalf, upon the individual's
death.
Thus, the Medicaid benefits provided by the Department to Lois created a $55,000 debt due
to the Department upon her death. This debt is payable from Lois's “estate,” which is
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defined as any real property, personal property, or other asset in which [she] ... had any legal
title or interest at the time of [her] death, to the extent of such interests, including but not
limited to interests in jointly held property, retained life estates, and interests in trusts. Id. §
249A.5(2)(c ) (emphasis added).
The Department argues the $18,000 remaining corpus of the trust is an “interest in
[a] trust[],” Id. and is part of Lois's estate, from which it can collect its $55,000 debt. Dianne
and Gayle, however, contend that the trust terminated upon Lois's death and that she
therefore had no interest in the trust “at the time of her death.” See Id.
Our first task is to classify the trust at issue. Because the corpus of the trust could
only be invaded “if necessary for [Lois's] proper support and maintenance,” the corpus of
the trust was held in a form of support trust. See Austin Wakeman Scott, Abridgement of the
Law of Trusts § 154 (1960) [hereinafter Scott on Trusts] (defining a support trust as one in
which the trustee is directed to distribute so much “as is necessary for the education or
support of the beneficiary”); accord Strojek v. Hardin County Bd. of Supervisors, 602 N.W.2d 566,
570 (Iowa Ct. App. 1999) (“The terms of a support trust require the trustee to pay or apply
so much of the trust's income or principal as necessary for the beneficiary's care or
education.” (Citation omitted.)). There are two types of support trusts: (1) pure support
trusts, and (2) discretionary support trusts. See George Gleason Borgert & George Taylor
Bogert, The Law of Trusts and Trustees § 229 (2d. ed. 1993) [hereinafter Bogert on Trusts]; see
also Strojek 602 N.W.2d at 570; Smith v. Smith, 246 Neb. 193, 517 N.W. 2d 394, 398 (1994);
Evelyn Ginsburg Abranavel, Discretionary Support Trusts, 69 Iowa L.Rev. 273, 278-80 (1983)
[hereinafter Abranavel].
A settlor creates a pure support trust “[i]f a trustee is directed to pay or apply trust
income or principal for the benefit of a named person, but only to the extent necessary to
support him, and only when the disbursements will accomplish support.” Bogert on Trusts § 229
(emphasis added). In contrast, a settlor creates a discretionary support trust if “the stated
purpose of the trust is to furnish the beneficiary with support, and the trustee is directed to
pay to the beneficiary whatever amount of trust income [or principal] the trustee deems
necessary for his support.” Bogert on Trusts § 229; see also Smith, 517 N.W. 2d at 398
(describing a discretionary support trust as a hybrid of a pure support trust and a pure
discretionary trust). Generally, if the trust is a discretionary support trust, the beneficiary has
a right that the trustee pay him the amount which in the exercise of reasonable discretion is
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needed for his support ...; and the beneficiary can transfer this interest or his creditors may
reach it, unless it is protected by a spendthrift clause. Bogert on Trusts § 229; see also Bureau of
Support v. Kreitzer, 16 Ohio St.2d 147, 243 N.E.2d 83, 86 (1968) (stating that “the words ‘care,
comfort, maintenance and general well-being’ are to be deemed an enforceable standard of a
fiduciary's conduct to the extent of providing minimal support for a destitute cestui que
trust” and that the state, as a creditor having provided support to the beneficiary, “may be
considered to stand in [her] place to pursue whatever right, claim or remedy she may have,
including such as she may have as a destitute cestui que trust”); Scott on Trusts § 187 (stating
that although a trustee has discretion whether to make distributions, “if he is directed to pay
as much of the income and principal as is necessary for the support of a beneficiary, he can
be compelled to pay at least the minimum amount which in the opinion of a reasonable man
would be necessary”); Lawrence A. Frolik, Discretionary Support Trusts for a Disabled Beneficiary:
A Solution or a Trap for the Unwary?, 46 U. Pitt. L. Rev. 335, 342 (1985) (explaining that when a
trust is a discretionary support trust, “the trustee can be required to distribute sufficient
income to the beneficiary to provide at least a minimum level of support”).
The language used by George Barkema created a discretionary support trust. The
trust agreement contained a support provision and provided directions for the trustee to use
the trust corpus if necessary for Lois's support and maintenance. By using the words “to the
extent said trustees deem necessary,” it gave the trustees some discretion as to whether to
invade the corpus, see Bohac v. Graham, 424 N.W.2d 144, 146 n.3 (N.D. 1988)(finding a
discretionary support trust when the trust allowed the trustee to invade the corpus as he
“may deem necessary” for the beneficiary's support; stating that “inclusion of the support
language suggests an enforceable standard requiring the trustee to provide a minimum level
of support to the beneficiary” (citations omitted)).
Having determined that the trust at issue was a discretionary support trust, we must
next determine whether Lois's interest in the discretionary support trust is the kind of
interest encompassed by section 249A.5(2)(c). In construing a statute,
[o]ur goal is to determine the intent of the law, gleaned generally from the
statutory language. We also consider the statute's “subject matter, the object
sought to be accomplished, the purpose to be served, underlying policies,
remedies provided, and the consequences of the various interpretations.”
Cox v. State, 686 N.W.2d 209, 213 (Iowa 2004)(citations omitted). Thus, we begin by
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examining the statutory language.
The phrase “interests in trusts” is not defined in chapter 249A. See Iowa Code ch.
249A. However, the legislature clearly intended to define “estate” broadly, and to include
more than legal title, because it defined it to include any “legal title or interest.” Id. §
249A.5(2)(c ) (emphasis added). It also chose to define “estate” more broadly than the
federal Medicaid law. The federal statute provides that “estate” “shall include all real and
personal property and other assets included within the individual's estate, as defined for
purposes of State probate law.” 42 U.S.C. § 1396p(b)(4)(A) (2000). However, the federal
statute provides that “estate” “may include, at the option of the State ..., any other real and
personal property and other assets in which the individual had any legal title or interest at the
time of death.” Id. § 1396p(b)(4)(B). It appears our legislature sought to exercise its option
by including interest in addition to legal title.
We next consider the purpose of the Medicaid recovery statute. As one court
explained,
Congress mandated that [states participating in the Medicaid
program] adopt estate recovery provisions and permitted states to
adopt an expansive definition of “estate” to address the increased
demand for Medicaid benefits from the nation's aging population. In
doing so, Congress intended to give states “wide latitude” in seeking
estate recoveries. “Allowing states to recover from the estates of
persons who previously received assistance furthers the broad
purpose of providing for the medical care of the needy; the greater
amount recovered by the state allows the state to have more funds to
provide future services.”
Estate of DeMartino v. Div. of Med. Assistance & Health Servs., 373 N.J. Super. 210, 861 A.2d
138, 144 (2004)(citations omitted). The Medicaid program is designed to serve “individuals
and families who do not possess adequate funds for basic health services. It is “ ‘the payer of
last resort.’ ” ” Strand v. Rasmussen, 648 N.W. 2d 95, 106 (Iowa 2002) (citations omitted).
With this in mind, we find that a person has an “interest” in the trust to the extent
the assets of a trust are actually available to a trust beneficiary, as that term is used in section
249a.5(2)(c) Cf. Linser v. Office of Attorney Gen., 672 N.W. 2d 643, 646 (N.D. 2003) (“Under
both federal and state law, an asset must be ‘actually available’ to an applicant to be
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considered a countable asset for determining Medicaid eligibility.” (Citation omitted.)). “In
order for an asset to be considered an actually available resource, an applicant must have a
legal ability to obtain it.” Hecker v. Stark County Soc. Serv. Bd. 527 N.W.2d 226, 237 (N.D.
1994) (citations omitted). This approach is consistent with the purpose of the recovery
statute and the broad language used by our legislature.
The Barkema Trust was a discretionary support trust that contained enough of a
distribution standard to create an interest of the beneficiary in the corpus. The trustee was
required to pay Lois, during her lifetime, “the amount which in the exercise of reasonable
discretion [was] needed for [her] support.” Bogert on Trusts § 229. This gave Lois the legal
ability to compel the trustee to invade the corpus of the trust and make distributions to her
for her support. Consequently, she had an “interest” in the corpus of the trust. We next
consider whether the interest was present at the time of her death.
Under the Medicaid recovery statute, the Department can collect its debt from Lois's
interest in the trust that she had “at the time of [her] death.” Iowa Code § 249A.5 (2)(c ).
Gayle and Dianne argue that “at the time of her death” means “at the precise moment she
died.” They claim Lois had no interest at the time of her death because the corpus passed to
them upon her death by operation of law. We reject this argument for the reason expressed
by the Minnesota Court of Appeals: “‘[A]t the time of death’ must be construed to mean a
point in time immediately before death. Any other reading of this phrase would render the
estate recovery statute meaningless because upon death, property immediately passes to
beneficiaries.” In re Estate of Gullberg, 652 N.W. 2d 709, 713 n. 1 (Minn. Ct. App. 2002)
(citation omitted). For example, besides interests in trusts, the Medicaid recovery statute
includes jointly held property in the definition of “estate.” See Iowa Code § 249A.5 (2)(c ).
Under property law, joint tenancy property passes by operation of law to the other joint
tenant when one joint tenant dies. 20 Am. Jur.2d Cotenancy and Joint Ownership § 3 (1995). If
“at the time of death” meant “at the moment of death,” the jointly held property would
already have passed to the decedent's joint tenant at the time when the decedent's “estate” is
to be defined for purposes of the Medicaid recovery statute. This interpretation of “at the
time of death” would render the legislature's inclusion of jointly held property in the
definition of “estate” meaningless. “In interpreting statutes, we will assume that the
legislature intends to accomplish some purpose and that the statute was not intended to be a
futile exercise.” State v. Reed, 596 N.W.2d 514, 515 (Iowa 1999) (citing State v. Horton, 509
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N.W.2d 452, 454 (Iowa 1993); Mallory v. Paradise, 173 N.W.2d 264, 268 (Iowa 1969)).
Accordingly, we conclude the phrase “at the time of death” means the time immediately
before the Medicaid recipient's death.
Thus, the Department acquired Lois's “right that the trustee pay [her] the amount
which in the exercise of reasonable discretion is needed for [her] support.” Bogert on Trusts §
229. Richard, the trustee of the trust, conceded that the Medicaid benefits the Department
provided to Lois were necessary for her support. Accordingly, the Department's $55,000
debt may be collected from the remaining corpus of the trust.
IV. Conclusion
For the foregoing reasons, we affirm the ruling of the district court.
NOTE-Medicaid and Trust Assets
The Barkema case involved a trust beneficiary who received government assisted.
In that case, the court permitted the government to be reimbursed from the remaining
corpus of the trust. The question is whether a person with a trust fund should be eligible for
government benefits in the first place. In making that determine the first step is to classify
the trust as self-settled or created by a third party. The second step is to ascertain whether
the funds in the trust are deemed to be the resource of the beneficiary receiving the state
support. For Medicaid purposes, the trust is considered to be self-settled if the person’s
money was used to fund all or part of the corpus of the trust and the trust is established by
him, his spouse or a person or court with the legal authority to act on his behalf or at his
request or his spouse’s request. If the trust is categorized as a revocable self-settled trust,
both the corpus and the income of the trust are considered to be resources available to the
state-supported beneficiary. When the case involves an irrevocable self-settled trust, any
income or corpus that under any circumstances could be paid to or applied for the benefit of
the state-supported person could be viewed as a resource. Any resource will impact the
person’s eligibility for Medicaid.
With regards to trusts created by third parties, a trust will not be considered a
resource available to the person if it is established for a disabled individual from his
property, by a parent, grandparent or guardian, or by a court and the trust provides that the
sate will receive upon the persons’ death all amounts remaining in the trust up to the amount
equal to the total medical assistance paid by the state. Discretionary trust created by the will
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of one spouse for the benefit of the surviving spouse is not deemed a resource available to
the surviving spouse.

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Chapter 5 - Spendthrift Trusts and
Creditors
A spendthrift is a person who squanders money. If the testator wants to provide for
a person who she knows is wasteful, her best option is to create a spendthrift trust or to
place a spendthrift provision in any other type of private trust. The beneficiary of a
spendthrift trust cannot voluntarily alienate his or her interest in the trust. In the case of a
mandatory trust with a spendthrift clause, the beneficiary can waste the money that he
receives from the trustee. However, the beneficiary cannot transfer his interest in the trust.
Likewise, the beneficiary’s creditors cannot force the trustee to pay his debts from the funds
in the trust. This type of trust is created by placing a disabling restraint upon the beneficiary
and his creditors. No specific language is needed to create a spendthrift trust as long as the
testator manifests an intent to create one. Thus, a spendthrift trust may be created by
implication based upon the totality of the circumstances involved in the trust’s creation. All
jurisdictions have enacted statutes permitting spendthrift trusts. Most of those statutes are
similar to the Uniform Trust Code’s provision that is set out below.
Uniform Trust Code (2000)
§502. Spendthrift Provision
(a) A spendthrift provision is valid only if it restrains both voluntary and involuntary transfer
of a beneficiary’s interest.
(b) A term of a trust providing that the interest of a beneficiary is held subject to a
“spendthrift trust,” or words of similar import, is sufficient to restrain both voluntary and
involuntary transfer of the beneficiary’s interest.
(c) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift
provision and, except as otherwise provided in this [article], a creditor or assignee of the
beneficiary may not reach the interest or a distribution by the trustee before its receipt by the
beneficiary.
§503. Exceptions to Spendthrift Provision
(a) In this section, “child” includes any person for whom an order or judgment for child
support has been entered in this or another State.
(b) Even if a trust contains a spendthrift provision, a beneficiary’s child, spouse, or former
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spouse who has a judgment or court order against the beneficiary for support or
maintenance, or a judgment creditor who has provided services for the protection of a
beneficiary’s interest in the trust, may obtain from a court an order attaching present or
future distribution to or for the benefit of the beneficiary.
(c) A spendthrift provision is unenforceable against a claim of this State or the United States
to the extent a statute of this State or federal law so provides.
Problems
Answer the following questions based upon the UTC.
1. Ryan, a compulsive gambler, borrowed $50,000 from his friend Mario to pay off his
gambling debts. In exchange for the loan, Ryan signed a contract agreeing to repay him out
of the funds in a spendthrift trust created for him by his mother. Ryan went to the trustee
and ask for $50,000, so he could repay Mario. What result?
2. Nina established a spendthrift trust for the benefit of her son, Ivan. While he was married,
Ivan had an affair with Jennifer. As a result of that affair, Jennifer gave birth to a son, Elliot.
Ivan refused to provide financial support for Elliot. Elliot had to have emergency surgery
that cost $150,000. Jennifer sued the trust seeking assistance to pay off the hospital bill.
What result?
3. Sheldon created a spendthrift trust for the benefit of her daughter, Maria. Maria
accumulated over $30,000 in credit card debt. One of the credit card companies obtained a
$20,000 judgment against Maria. That company sued to attach the trust funds. The trustee
hired Julius, an attorney, to defend the trust. After Julius successfully protected the trust
assets, he submitted a $15,000 bill for attorney fees. The trustee thought that the attorney
fees were too high, so he refused to pay it. Julius sued the trust to recover the attorney fees.
What result?
4. Jessie established a spendthrift trust for the benefit of her niece, Paula. Paula did not pay
income taxes on the income that she earned from a part-time job. As a result, the Internal
Revenue Service obtained a $11,000 judgment against her. The IRS filed suit against the trust
seeking to satisfy the judgment. What result?

5.1

Expressed Spendthrift Trust
The following is an example of the creation of an expressed spendthrift trust: Louise

devises property to Samuel in trust to pay the income to James for life. The trust instrument
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contains a clause stating: “As beneficiary of this trust, James is hereby restrained from
alienating, anticipating, encumbering, or in any manner assigning his or her interest or estate,
either in principal or income, and is without the power so to do, nor shall such interest or
estate be subject to his or her liabilities or obligations not to judgment or other legal process,
bankruptcy proceedings or claims of creditors or others.” By inserting this language in the
trust, Louise ensures that James’ creditors cannot obtain an interest in the trust.

5.2

Implied Spendthrift Trust

Morrison v. Doyle, 582 N.W. 2d 237
GARDEBRING, Justice.
We are asked to determine whether the trust at issue in this case is a “spendthrift
trust.” If so, the assets of the trust are protected from attachment by the primary
beneficiary's judgment creditors; if not, the creditors, whose judgment against the primary
beneficiary William Doyle (appellant) arises from a business deal, are entitled to attach the
assets in the trust, as the trial court and court of appeals have held. We reverse the court of
appeals, holding that the settlor's intent in creating the trust was to protect the trust funds
from the primary beneficiary's creditors and that the powers afforded to Doyle, as trustee, by
the trust instrument do not defeat that intent.
The business relationship underlying this case began in 1977 when respondents
Michael Morrison and others loaned substantial funds to a corporation, in which Doyle and
his brother claimed to be the only shareholders. Doyle personally guaranteed the loans, but
later defaulted on the guarantee. Respondents commenced suit against Doyle and his brother
in 1979, alleging breach of contract; they received a judgment against Doyle in 1993 in the
amount of $55,954.19 After various other attempts to enforce the judgment, in 1996
respondents sought a preliminary order of attachment of certain trust assets, for which
Doyle was both the trustee and the beneficiary, and a temporary restraining order to prevent
Doyle transferring any of the trust assets. The Morrisons alleged that Doyle had fraudulently
transferred money and property from the trust to defraud the respondents. The trial court
granted the Morrisons' motion for an order of attachment, stating that “[d]ue to
extraordinary circumstances, claimant's interests cannot be protected pending hearing by an
appropriate order of the court other than by directing a pre-hearing seizure of property.”
After a hearing on the issue, the trial court concluded that the trust at issue was not a
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spendthrift trust and was therefore subject to attachment by Doyle's creditors. The trial
court also found that the underlying claim against Doyle sounded in contract, but was
premised on Doyle's having committed an intentional fraud against the Morrisons, thereby
providing a basis for the attachment under Minn. Stat. § 570.02, subd. 1(4) (1996). Pursuant
to these findings, the trial court granted the Morrisons' application for attachment and a
temporary restraining order.
Doyle appealed to the court of appeals and it affirmed the judgment of the trial
court, concluding that the trust was not an implied spendthrift trust because “Doyle, as
trustee, * * * has the discretion to distribute both the income and the principal of the trust to
himself as he sees fit.” Morrison v. Doyle, 570 N.W.2d 692, 697 (Minn. App., 1997). The court
of appeals further held that there is ample evidence in the record to support the trial court
finding that Doyle “assigned, secreted and disposed of non-exempt property with intent to
delay and defraud his creditors, the Morrisons,” and that Doyle committed an intentional
fraud against the Morrisons. Id. at 699. The court of appeals relied upon these findings of
fact as the basis justifying the issuance of the order of attachment to provide security for
satisfaction of the Morrisons' judgment against Doyle. Id. at 699-700.
The facts regarding the creation of the trust at issue here are undisputed. Veronica
Doyle, mother of appellant Doyle, died on February 12, 1988, and in her will she left onesixth of her residual estate to her daughter-in law, Lois Doyle, Doyle's wife. Veronica Doyle
stated in the will that she intentionally did not provide for her son as she had otherwise
provided for him in her lifetime. Lois Doyle died on May 14, 1988, and left a will in which
she devised the residue and remainder of her estate into a trust that she had previously
created on January 5, 1988. The probate court found that Lois Doyle's will was a “pourover” will. Therefore, the money inherited by Lois Doyle from Veronica Doyle was
transferred into the trust at issue in this case.
The trust instrument itself named Lois Doyle as both the grantor and the trustee;
Doyle was designated as “attorney-in-fact” and given the power to act for Lois Doyle for
purposes of the trust agreement only. He was also named as the primary beneficiary. Doyle's
four children were named as residual beneficiaries. Upon Lois Doyle's death, all of the
beneficiaries of the trust signed a consent agreement and stipulation appointing Doyle as the
successor trustee to the trust. This stipulation stated that “it was the intent of Lois M. Doyle,
and all of the [beneficiaries] that upon Lois M. Doyle's death that William G. Doyle would
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succeed her as Trustee of the Trust;” it was approved by the district court. Therefore, Doyle
became both the primary beneficiary and the trustee of the Lois Doyle trust.
The trust instrument did not contain a specific “spendthrift clause,” but did contain
the following provisions, which have a bearing on today's decision:
3. The trust shall continue upon the death of the Grantor for the benefit of
WILLIAM DOYLE lasting his lifetime. The trustee shall pay the income and
such amounts of the principal as the Trustee in its discretion may determine
for the beneficiary's education, support, health, and maintenance.
******
6. Early Termination of the Trust. If at any time the principal of the Trust
should fall to a value which would make the Trust uneconomical in the
opinion of the Trustee, the Trustee may in its sole discretion terminate the
Trust and pay over the remaining principal and income to the Grantor if he
is living (and in such event the Trustee will notify the other beneficiaries of
the Trust's early termination), and if not living, then to, or for the benefit of,
any one or more of the income beneficiaries designated in Article 3 above,
or, if there are none such to take, as provided in Article 4 above.
7. Powers and Duties of Trustee. The Trustee shall have the full power,
subject to direction of Grantor, and without prior authority from any court
to do everything necessary for the proper administration of this trust.
******
12. Payment to Beneficiaries. The Trustee may make any payments of
income or principal directed to be made to any beneficiary under any
provision of this Agreement, including any distribution on termination, or
resignation.
1. by paying the same directly to any beneficiary or to his spouse,
parent,

adult

sibling,

legally

appointed

guardian,

committee,

conservator, or custodian, or
2. by depositing same in any savings account in the name of any of the
beneficiaries, whether alone or in joint names including any person
designated by the Grantor in accordance with the provisions of Article
11.
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and upon making any such payment or deposit the Trustee shall have
no further responsibility with respect to the same or to the application
or disposition of the moneys so deposited.
In order to resolve this matter, we must determine whether the language of this trust
document and the manner in which it was implemented require its designation as a
“spendthrift trust,” replete with all of the legal protections afforded to the beneficiary of
such a trust.
The underlying legal principles are not novel. A spendthrift trust is a trust in which
the power of alienation has been suspended. In re Moulton’s Estate, 233 Minn. 286, 290, 46
N.W.2d 667, 670 (1951). The validity of a spendthrift trust is upheld on the theory that the
owner of property, in the free exercise of his will in disposing of it, may secure such benefits
to the objects of his bounty as he sees fit and may, if he so desires, limit its benefits to
persons of his choice, who part with nothing in return, to the exclusion of creditors and
others. Id. Minn. at 290-91, 46 N.W.2d at 670 (citations omitted).
Generally, to create a spendthrift trust, the trust agreement must simply include a
spendthrift clause. See, e.g., In re Trust Created Under Agreement with McLaughlin, 361 N.W.2d 43,
45 (Minn. 1985). The following is an example of a spendthrift clause:
Neither principal nor income of any trust nor any beneficiary's interest
therein, while undistributed in fact, shall be subject to alienation, assignment,
encumbrance, appointment or anticipation by the beneficiary, nor to
garnishment, attachment, execution or bankruptcy proceedings, nor to claims
for alimony or support or any other claims of any creditor or other person
against the beneficiary, nor to any other transfer, voluntary or involuntary,
from the beneficiary.
Id. However, we have also provided the asset protections afforded in a spendthrift trust
when the trust agreement did not include an express spendthrift provision. See Moulton’s
Estate, 233 Minn. at 302-03, 46 N.W.2d at 675-76; see also First Nat’l Bank of Canby v. Olufson,
181 Minn. 289, 291, 232 N.w. 337, 338 (1930). “No particular form of words is necessary to
create a spendthrift trust. It is sufficient if by the terms of the trust the settlor manifests an
intention to impose the restrictions common to such trust.” Moulton’s Estate, 233 Minn. at
291, 46 N.W.2d at 670.
In cases such as this one, where the trust agreement does not contain a specific
145

spendthrift clause, we look to the settlor's intent as evidenced by the language used in the
trust agreement. Id., 233 Minn. at 295, 46 N.W.2d at 672. In that determination we are to be
guided by the well-known principle that the entire instrument must be considered, aided by
the surrounding circumstances, due weight being given to all its language, with some
meaning being given, if possible, to all parts, expressions and words used, discarding and
disregarding no parts as meaningless, if any meaning can be given them consistently with the
rest of the instrument. In re Watland, 211 Minn. 84, 91, 300 N.W. 195, 198 (1941) (quotation
omitted).
What indications of the settlor's intent are present in this case? We may begin with
the death of Doyle's mother and her decision to disinherit her son William, apparently in
order to protect him from his creditors. The record here includes deposition testimony of
William Seltz, who prepared Veronica Doyle's will, to the effect that she intended for her
estate to be equally divided between all six of her children, but that she wanted to protect
Doyle's share from his creditors. Therefore, according to Seltz, she asked him to structure
her will so that William's “share” passed instead to his wife. It is primarily this one-sixth
portion of Doyle's mother's estate that became the corpus of the trust at issue here.
Next, we may look to the language of the trust document itself, because the settlor's
intent can be determined by looking to the restrictions placed upon the trustee as to
distribution of income and principal to the beneficiaries of the trust. See Moulton’s Estate, 233
Minn. at 291, 46 N.W.2d at 670 (stating that intent can be inferred by looking to the terms of
the trust to determine whether the settlor imposed the restrictions common to such trust).
Here the settlor provided that the trustee “shall pay the income and such amounts of the
principal as the Trustee in its discretion may determine for the beneficiary's education,
support, health, and maintenance.” While many spendthrift trusts contain more explicit
limitations, we conclude that these restrictions represent the kind of ascertainable standards
that are sufficient to guide the actions of the beneficiary and against which his conduct can
be measured. Furthermore, the specific language at issue has been, since the time the trust
was created, actually mirrored in the legislative scheme that governs distribution of trust
assets:
No trustee may exercise or participate in the exercise of * * * any power of
the trustee to make discretionary distributions of either principal or income
to or for the benefit of the trustee as beneficiary, unless by the terms of the
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will or other written instrument those discretionary distributions are limited
by an ascertainable standard relating to that trustee's health, education,
maintenance, or support * * *.
Minn. Stat. § 501B.14, subd. 1 (1996). The trust language also tracks the Internal Revenue
Service's statutory provisions on the creation of ascertainable standards that limit
distribution of trust assets. See I.R.C. § 2041(b)(1)(A) (1994).
We also conclude that the type of language used in the trust document at issue here
is consistent with language to which we have attached significant meaning in our older trust
cases. See In re Tuthill’s Will, 247 Minn. 122, 76 N.W.2d 499 (1956); see also McNiff v. Olmsted
County Welfare Dep’t. 287 Minn. 40, 176 N.W.2d 888 (1970). Thus, based upon the past cases
that direct us to act on the manifest intent of the settlor, we hold that the trust at issue here
is a spendthrift trust, thus defeating the claims of the Morrisons to attach the trust assets.
Further, although we disagree with the conclusions of the lower courts, we are not
unmindful of the concerns they raise. The trial court and the court of appeals relied on three
bases to conclude that the trust at issue here is not a spendthrift trust: (1) that there was a
merger of Doyle's legal interest as trustee and his beneficial interest; (2) that Doyle, as
trustee, had the authority to distribute both income and amounts from the principal at his
discretion pursuant to Paragraph 3 of the trust agreement, and that Doyle may have
distributed trust funds in violation of the trust agreement; and (3) that Doyle, as trustee, has
the authority to terminate the trust pursuant to Paragraph 6 of the trust agreement. See Doyle,
570 N.W. 2d at 697-98. In addition, the Morrisons rely heavily on their assertions that Doyle,
as trustee, has violated the terms of the trust agreement by distributing trust monies to
himself and the other beneficiaries and by attempting to conceal the fact that he has received
money from the trust.
However, none of these bases defeats the critical provisions of the trust that make it
a spendthrift trust. First, there is no merger of Doyle's legal and beneficial interests simply
because he is both the trustee and the primary beneficiary of the trust. The Minnesota
legislature has spoken to this issue: “No trust is invalid or terminated, and title to trust assets
is not merged, because the trustee or trustees are the same person or persons as the
beneficiaries of the trust.” Minn. Stat. § 501B.13, subd. 1 (1996). And we assume that if the
trust is not made utterly invalid by virtue of the trustee and the beneficiary being the same
person, its “spendthrift” characteristics are not defeated either.
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Further, the Restatement (Second) of Trusts § 99 discusses the ramifications of
having a primary beneficiary also act as the trustee of a trust. It states:
There can be a trust in which one of several beneficiaries is the sole trustee.
The trustee holds the legal title to the trust property, and the beneficiaries,
including the beneficiary who is also the trustee, have equitable interests the
extent of which is determined by the terms of the trust. There is no partial
merger of the legal interest and the equitable interest. The beneficiary who is also
trustee does not hold any part of the property free of trust. A creditor of this
beneficiary can reach his interest only by a proceeding appropriate for
reaching an equitable interest, and, if it is a spendthrift trust, a creditor cannot reach
his interest.
Restatement (Second) of Trusts §199 cmt. (2) (1959) (emphasis added). Thus, we attach no
special importance to the fact that Doyle has been both trustee and primary beneficiary.
Second, although Doyle can make distributions from both the income and the
principal of the trust, as noted above, the trust agreement does provide limitations on the
purposes for which distributions from both income and principal can be made. Article 3 of
the trust agreement limits distribution to the purposes of “education, support, health, and
maintenance.” Therefore, there are limits to Doyle's power of distribution, contrary to the
court of appeals' conclusion that Doyle “has the discretion to distribute both the income and
the principal of the trust to himself as he sees fit.” Doyle, 570 N.W.2d at 697 (emphasis added).
Similarly, the power to terminate the trust is not determinative because article 6 of the trust
agreement limits that power to the occasion when the trust is uneconomical. Therefore,
Doyle as trustee does not have unlimited authority.
Finally, the alleged improper actions of Doyle as trustee are irrelevant to the question
of whether the trust is a spendthrift trust. There are five different ways that a court of law
may remedy a trustee's abuse of discretion, none of which include eliminating the spendthrift
nature of the trust.
The beneficiary of a trust can maintain a suit for one of the following: (a) to compel
the trustee to perform his duties as trustee; (b) to enjoin the trustee from committing a
breach of trust; (c) to compel the trustee to redress a breach of trust; (d) to appoint a
receiver to take possession of the trust property and administer the trust; [or] (e) to remove
the trustee. Restatement (Second) of Trusts § 199. While it is true that these remedies are
148

generally available only to other beneficiaries, and not to third-party creditors, that is
precisely the point of the creation of a spendthrift trust: the assets contained within it are not
available to persons outside the trust relationship. Given these basic concepts of trust law,
we conclude that it would be inappropriate to allow Doyle's judgment creditors to gain an
attachment to the trust simply because Doyle, as trustee, may have abused his discretion in
distributing trust funds.
Because we conclude that Lois Doyle, the settlor of the trust at issue, intended to
create a spendthrift trust, we reverse the judgment of the court of appeals and hold that the
instant trust is an implied spendthrift trust and, for that reason, the Morrisons cannot obtain
an attachment to the trust.
Reversed.
NOTE
A person cannot shield his assets from creditors by placing them in a trust for his
own benefit. Thus, the law gives creditors recourse against the entire interest in a self-settled
trust. Thus, protection from creditors is available only to a recipient of inherited wealth, not
a person who creates a self-settled trust using earned money. This rule has been codified in
the majority of jurisdiction. For example, a California statute provides: “(a) If the settlor is a
beneficiary of a trust created by the settlor and the settlor's interest is subject to a provision
restraining the voluntary or involuntary transfer of the settlor's interest, the restraint is
invalid against transferees or creditors of the settlor. The invalidity of the restraint on
transfer does not affect the validity of the trust.” Cal. Probate Code §15304.

5.3

Creditors
Brian is the beneficiary of a spendthrift trust. Brian takes his American Express card

to the mall and goes on a shopping spree to the tune of $80,000. If Brian does not pay his
credit card bill, American Express cannot reach any of the money in the trust fund.
American Express is considered to be a voluntary creditor because the company gave Brian a
credit card. Nonetheless, a person who furnishes necessary services or support to the
beneficiary can reach the beneficiary’s interest in a spendthrift trust. This exception applies
to people like doctors and grocers. In the majority of jurisdictions, involuntary creditors like
spouses and children are permitted to attach spendthrift trust funds to satisfy the
beneficiary’s alimony and child support obligations. Nonetheless, tort victims who are
149

involuntary creditors are precluded from receiving money from a spendthrift trust

Child Support-Drevenik v. Nardone, 862 A.2d 635
OPINION BY POPOVICH, J.:
¶ 1 Appellant Dominick Nardone, Jr., trustee for John Nardone, his brother, appeals
the order entered on April 12, 2004, in the Court of Common Pleas of Luzerne County, that
directed Appellant to pay Mr. Nardone's child support arrears from the principal and income
of the spendthrift trust established for Mr. Nardone's benefit by their mother's will. Upon
review, we affirm.
¶ 2 The relevant facts and procedural history of this case are set forth in the trial
court's opinion of June 14, 2004, as follows:
This matter originated on February 12, 1996, when the [c]omplainant, [Appellee]
Nicole Drevenik, filed a civil [c]omplaint for support against [Mr. Nardone] for the support
of their two children, Joseph Drevenik, born September 18, 1986, and Jason Drevenik, born
November 29, 1987. After a support conference and [hearing] before a [master in support],
an [o]rder was entered for the support of the minor children on August 15, 1997, in the
amount of $200.00 per month. Later modification petitions reduced this amount by [o]rder
of March 16, 2000, to $140.00 per month in support and $20.00 per month on arrears.
Subsequently, because [Mr. Nardone] did not pay any child support for more than a
year, a petition was filed to show cause why the assets of a trust held for [Mr. Nardone]
should not be used for support payments of his children. On March 3, 2004, Mr. Nardone
appeared before [the trial court] owing child support in an amount just over $2,411.00. Mr.
Nardone acknowledged that he owed child support, that he wished to pay off this amount,
and was willing to cooperate with the Commonwealth to the fullest extent. Counsel for
[Appellant] explained that a [s]pendthrift [t]rust, of which [Mr. Nardone is the beneficiary]
was at the heart of the problem. Inez L. Nardone, [Mr. Nardone's mother (decedent) ], died
on April 20, 2002, in Luzerne County. By her [l]ast [w]ill and [t]estament, she left fifty
percent of her net estate to [Appellant] and fifty percent to [Appellant] in trust for [Mr.
Nardone]. Item III of decedent's will states in part:
[...] I give, devise, and bequeath my entire estate, whether real, personal, or mixed, of
every kind, nature, and description whatsoever and wherever situated, as follows:
***
B. Fifty (50%) percent to my son, [Appellant], in trust for my son,
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[Mr. Nardone]. [Appellant] shall serve without bond. [Appellant] shall
have total control over this [t]rust and apply such amount of income
and principal as he, in his sole discretion, deems proper for the
support, education, and welfare of my son, [Mr. Nardone]. I direct
that this sum be invested safely and wisely in the sole discretion of
[Appellant]. I further direct that my son, [Mr. Nardone] shall have no
right to withdraw any funds from this trust.
Although the complete and total amount of the trust assets [has not been calculated
and is, therefore, unknown], records from the Luzerne County Recorder of Deeds Office
indicate that on August 19, 2000, [decedent's] home was sold for $94,900.00. Therefore,
approximately half of this amount was placed in trust for [Mr. Nardone].
By order of April 12, 2004, [the trial court] found Mr. Nardone] in arrears of his
child support obligation in the amount of $2,456.34. [Appellant] was directed to make
immediate payment of all arrearages and to make continuing monthly payments of $140.00
by the 28th of each month. Furthermore, [Appellant] was ordered to provide a complete
account of the assets and expenditures of the trust held by [Appellant] on behalf of [Mr.
Nardone].
¶ 3 Appellant filed a timely notice of appeal from the trial court's April 12, 2004
order. Thereafter, Appellant filed an ordered statement of matters complained of on appeal.
The trial court did not file a corresponding opinion after Appellant filed his statement of
matters, but it did so upon the direction of this Court. See Drevenik v. Nardone, 644 MDA
2004 (Pa.Super. filed 6/16/2004) (unpublished order).
¶ 4 The sole issue Appellant present for our review is whether the principal of a trust
may be invaded by a trial court in order to satisfy outstanding child support arrears.
¶ 5 Our review of Appellant's issue is governed by the following standard: In our
appellate review of child support matters, we use an abuse of discretion standard. A support
order will not be disturbed on appeal unless the trial court failed to consider properly the
requirements of the Rules of Civil Procedure [g]overning [a]ctions for [s]upport ...or abused
its discretion in applying these Rules. An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or
ill-will ... discretion is abused. This is a limited role and, absent a clear abuse of discretion,
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the appellate court will defer to the order of the trial court. A finding of abuse is not lightly
made but only upon a showing of clear and convincing evidence. Dennis v. Whitney, 844 A.2d
1267, 1269 (Pa.Super 2004) (citations omitted).
¶ 6 Appellant contends that the trial court abused its discretion when it ordered that
the trust's principal and income be invaded to pay Mr. Nardone's child support arrears
because the Pennsylvania Supreme Court's holdings in Humphreys v. DeRoss, 567 Pa. 614, 790
A.2d 281 (2002), and Maher v. Maher, 575 Pa. 181, 835 A.2d 1281 (2003), instruct that trust
principal cannot be utilized as “income” for support purposes. We disagree.
¶ 7 It is clear that the holdings of Humphreys and Maher are inapplicable to the present
case. Humphreys and Maher held that the corpus of an inheritance could not be included as
“income” by the trial court when it calculates a support obligation pursuant to the Support
Guidelines. Humphreys, at 624, 790 A.2d 287-288 see also . Maher, 575 at 189-90, 835 A.2d at
1286-87. In the present case, as noted by the trial court, Appellee is not seeking a greater
support award or a re-calculation of Mr. Nardone's income in light of his trust assets. Rather,
Appellee seeks payment of accrued support arrears. Accordingly, neither Humphreys nor
Maher offer guidance in this case. Therefore, Appellant's argument fails.
¶ 8 We acknowledge that the corpus of the inheritance in question is in the nature of
a spendthrift trust, and, as such, the assets of the trust are insulated from incursions by
creditors until such time those assets are delivered into the hands of the beneficiary, in this
case, Mr. Nardone. 10 Summary of Pennsylvania Jurisprudence 2d. Probate, Estates and
Trusts § 31:7. Nevertheless, we are satisfied that the trial court did not abuse its discretion
when it ordered Appellant to distribute trust assets to pay Mr. Nardone's support arrears.
¶ 9 Reference to the testamentary language indicates that the spendthrift trust was
established for the “support, welfare, and education” of Mr. Nardone. Clearly, the idea of
providing support in the spendthrift trust, i.e., payment of daily living expenses, includes all
reasonable living expenses that one would occur in the course of daily living, such as those
involved in rearing children. Of course, children in our society can never be characterized as
an “expense,” but the very existence of the Support Guidelines makes it clear that
parenthood carries with it an obvious economic responsibility to care for a child's daily
needs, which responsibility is coterminous with the parent's need to support himself or
herself. As such, it becomes clear that the language of the trust permits the use of both trust
principal and income to support Mr. Nardone's children, because, if they lived with him,
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trust assets would be used to meet their daily needs as well. Therefore, we are satisfied that
the trial court did not abuse its discretion.
¶ 10 Our reasoning is buttressed by the seminal case of Moorehead’s Estate, 289 Pa.
542, 137 A. 802 (1927). In Moorehead’s Estate, Gertrude F. Moorehead (Gertrude) filed a
petition in the Orphans' Court of Allegheny County seeking support for herself from the
assets held for her estranged husband, H. Watt Moorehead (Watt), in the spendthrift trust
established by Watt's grandmother, Mary Moorehead (the testatrix). Moorehead’s Estate, at 544,
137 A. at 803. The trial court ruled that the assets should be available for Gertrude's support,
and both parties appealed.
¶ 11 Writing for a unanimous Court, Mr. Justice Frazer opined that, at the time of
the writing of the testamentary trust, the testatrix's intent was to protect Watt from wasting
his income by extravagance and dissipation but not to deliberately enable Watt to avoid the
responsibility of support to his family placed on him by the law of this Commonwealth.
Moorehead’s Estate, at 547-48, 137 A. at 804-05. As support for his conclusion, Mr. Justice
Frazer noted that the codicil that established the spendthrift trust was authored after Watt's
marriage to Gertrude and that there was no indication of animosity toward Gertrude by the
testatrix evident in her will and codicil or in the record. See Id., at 547-48, 137 A. at 804-05.
Moreover, even if a technical reading of the language of the spendthrift trust would permit
Watt from avoiding his responsibilities to his family by virtue of the creation of the
spendthrift trust, such a result was forbidden by the public policy of this Commonwealth.
Id., at 551, 137 A. at 806. Lastly, Mr. Justice Frazer reasoned that the nature of a support
obligation was not a “debt” because it was not founded upon a legal contract but, rather, a
societal obligation. Id., at 553, 137 A. at 806. Thus, an instrument that places a testamentary
gift out of bounds from creditors for the collection of “debts” had no effect to preserve that
property from the incursion of family members seeking payment of a support obligation. See
Id., at 533, 137 A. at 806. Therefore, our Supreme Court affirmed the order of the Orphans'
Court.
¶ 12 We observe that society places an even greater obligation on a parent to support
his or her children than on a spouse to support another spouse. Therefore, the rationale of
Moorehead’s Estate applies with even greater force to the present case. Inasmuch as our
Supreme Court has concluded that the term “debt” does not encompass support obligations,
the spendthrift trust cannot act to shield the assets of the trust from collection by Appellee
153

for the benefit of Mr. Nardone's children. Moorehead’s Estate, at 553, 137 A. at 806. Further,
similar to the facts in Moorehead’s Estate, the decedent lived long after the birth of Mr.
Nardone's children, and no animosity was evident toward them or their mother, Appellee, in
the will that established the spendthrift trust. However, even if it was the decedent's intent to
deprive her grandchildren of the assets within the trust, the public policy of this
Commonwealth would forbid such a result. Cf. Moorehead’s Estate, at 551, 137 A. at 806. It is
also evident from the record that Mr. Nardone recognizes his responsibility to his children
and agrees that Appellant should release the assets held in trust for him to them for their
support, which assets would, in any event, be available for the children's support were they
to reside with Mr. Nardone. Accordingly, we are satisfied that the trial court did not abuse its
discretion, and we affirm its order.
¶ 13 Order affirmed.

Tort Claim-Duvall v. McGee, 826 A.2d 416
BELL Chief Judge.
The issue presented for resolution by this case is whether a tort judgment may be
satisfied by invading the principal of a spendthrift trust held for the benefit of the tortfeasor.
The Circuit Court for Anne Arundel County, recognizing that Maryland law only allows
invasion of a spendthrift trust by a narrow class of creditors, and, only in limited
circumstances, declined to expand the class or the circumstances. It opined that to hold that
tort judgment creditors are among the class of creditors that have traditionally been allowed
to invade a spendthrift trust in satisfaction of a judgment, would be to “rewrite” Maryland
law. Such a revision of Maryland law, it pointed out, is properly addressed by the Maryland
General Assembly or this Court. We shall affirm the judgment of the Circuit Court.
I
James Calvert McGee (“McGee”), one of the appellees in the case sub judice, was
convicted of felony-murder for his participation in a robbery that resulted in the killing of
Katherine Ryon. Robert Ryon Duvall,the appellant, is the Personal Representative of the
Estate of Katherine Ryon. He brought suit, in that capacity, in the Circuit Court for Anne
Arundel County against McGee, seeking both compensatory and punitive damages, plus
costs of the suit, for the battery of Katherine Ryon and the conversion of her personal
property. The parties settled this action, negotiating and executing an Agreement for Entry
of Judgment/Partial Release of Claims (“Settlement Agreement”), pursuant to which, in
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satisfaction of the conversion count, the parties agreed to the entry of judgment against
McGee, and in favor of the appellant, for $100,000.00 in compensatory damages and
$500,000.00 in punitive damages. The Settlement Agreement acknowledged that McGee is
the beneficiary of a trust established by his deceased mother, which, at the time of the
settlement, was valued at approximately $877,000.00, exclusive of early withdrawal penalties
and taxes. Under the terms of the trust, periodic monetary payments are to be made to
McGee, and to others on his behalf, by Frank B. Walsh, Jr., the Trustee of the trust (“the
Trustee),” the other appellee in the case sub judice. Another provision of the trust established
what is commonly referred to as a “Spendthrift” Trust. That provision prohibited McGee
from alienating the trust principal (“corpus”) or any portion of the income from the trust
while in the hands of the Trustee, and specifically shielded both the corpus and the income
from claims of McGee's creditors. The trust instrument also gives broad discretion to the
Trustee to terminate the Trust at any time and pay the trust assets and any undistributed
income to McGee or to any of the remaindermen to which the trust referred. The Settlement
Agreement also provided that:
“The [appellant] hereby forever releases, waives, relinquishes and abandons any
rights he may have to satisfy or have paid any portion of the above-mentioned
judgment by way of attachment, garnishment or any other post-judgment
collection efforts directed against any periodic payments made by the Trustee of
the Trust to [McGee] as the beneficiary of the Trust, or directed against any
periodic payment made to any other person or entities for the benefit of [McGee].
The amount of any periodic payments which are immune to such post judgment
collection efforts hereunder shall not exceed the amount of the periodic payment
previously made during the preceding three (3) years, exclusive of payments made
for legal fees. The parties understand and specifically agree that the Trustee will
continue to pay the legal fees on behalf of [McGee] and such payment of legal fees
shall be immune to any post-judgment collection efforts as outlined above.
[McGee] agrees that he shall provide an annual accounting in August of each year
beginning in the year 2002 outlining the periodic payments received by him or
made to others on his behalf (exclusive of legal fees) during the preceding year.”
Thus, it prohibited the appellant from attaching or garnishing any of the periodic payments
the Trustee made to McGee from the Trust.
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Having surrendered all rights to attach McGee's periodic payment from the Trust,
but armed with the judgment entered pursuant to the Settlement Agreement, the appellant
sought to satisfy the judgment by invading the corpus of the trust. Thus, the appellant served
a Writ of Garnishment on the Trustee. Answering the Writ, the Trustee defended on the
grounds that the trust was a spendthrift trust; the Trustee was not indebted to McGee; and
the Trustee was not in possession of any property belonging to McGee.
Both parties moved for summary judgment. Although acknowledging that this
Court, in Smith v. Towers, 69 Md. 77, 14 497 (1888), upheld the validity of spendthrift trusts in
Maryland and, thus, prohibited their invasion for the payment of debt, the appellant
maintained that, over time, this Court has carved out, on public policy grounds, exceptions
to the spendthrift doctrine, pursuant to which some classes of persons are permitted to
invade spendthrift trusts. Noting one of the rationales of the Smith decision-that because
“[a]ll deeds and wills and other instruments by which [spendthrift] trusts are created are
required by law to be recorded in the public offices ... creditors have notice of the terms and
conditions on which the beneficiary is entitled to the income of the property,” 69 Md. 77, 14
499 the appellant argued that tort-judgment creditors should be included among those
excepted, since such creditors had no opportunity to investigate the credit-worthiness of the
tortfeasor prior to suffering from the tortious conduct giving rise to the claim. Furthermore,
the appellant continued, the public policy of this State dictates that tort-judgment creditors
be deemed a special class of creditors entitled to invade a spendthrift trust.
The trial court held: “Maryland law is what governs this case, however, and Maryland
law is clear. A spendthrift trust may not be reached in order to satisfy the judgment in the
case sub judice. Although the facts involving the murder of the late Ms. Ryon, and the further
facts relating to the beneficiary status of the Defendant McGee, a felony murderer, are very
tempting, this Court may not rewrite the law; the Maryland Legislature has the responsibility
of that task, or the Appellate Courts of this State must further interpret the law.... This Court
has a responsibility to apply and uphold the laws of the state as its interprets they now exist,
not create new law.”
Thus, the appellant's motion for summary judgment was denied and the appellees'
cross-motion, granted. The appellant noted a timely appeal to the Court of Special Appeals.
This Court, on its own initiative, issued the writ of certiorari to address this novel issue of
Maryland law, prior to any proceedings in the intermediate court. Duvall v. McGee, 369 Md.
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570, 801 A.2d 1031 (2002).
In this Court, the appellant argues that the public policy of this State favors a rule
allowing a tort-judgment creditor's claim to be satisfied by invading the corpus of a
spendthrift trust. He directs our attention to Maryland precedent, reflecting the recognition
of spendthrift trusts, the rationale for that recognition and the development of exceptions to
the spendthrift trust doctrine. More particularly, the appellant relies on Maryland's public
policy against permitting criminals to benefit financially from their crimes. As to that, he
relies on the Maryland statute, known as the “Son of Sam” statute, enacted to prevent
criminals from profiting from their own crimes through “notoriety of crimes contracts,”
Curran v. Price, 334 Md. 149, 154, 638 A.2d 93, 96 (1994), and the like, see Md.Code (1957,
1992 Repl.Vol., 1993 Cum.Supp.), Article 27, § 854; this Court's creation in the common law
of this State of a “slayer's rule,” pursuant to which a person who kills another is prohibited
from being tangibly enriched by the death. (citations omitted)
By way of rebuttal, the appellees counter that accepting the appellant's argument
would require and, thus, constitute a change in Maryland law and, in any event, the public
policy goals argued by the appellant will not be advanced by allowing garnishment of a
spendthrift trust by a tort-judgment creditor under the circumstances of the case sub judice.
As to the former, the appellees emphasize that the obligations, for the satisfaction of which
this Court has allowed invasion of the corpus and income of a spendthrift trust have not
been simple or ordinary contract debt; rather they have been “... dut [ies], not ... debt.” Safe
Deposit & Trust Co. of Baltimore v. Robertson, 192 Md. 653, 662, 65 A.2d 292, 296 (1949). See
Zouk v. Zouk, 204 Md. 285, 298, 104 A.2d 573, 579-80 (1954) (equating a contract for child
support to “the decree of a court awarding support to the child or alimony to a wife.”). With
respect to the latter, they argue that the public policy against a criminal benefitting from his
or her crime is simply inapplicable to the case sub judice. The payments that McGee receives,
they maintain, are in no way related to the crime that he committed. As important, the
appellees point out, those payments are not even involved in the case, the parties, by their
settlement agreement, having expressly exempted them from attachment.
II.
In Maryland, it is well settled that “spend-thrift trusts” may be created. (citations
omitted). This Court first recognized the validity of “spendthrift” trusts, in Smith v. Towers,
supra, concluding that the income from, and corpus of, such trusts are not subject to
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attachment or garnishment in the hands of the trustee. It is useful to review the rationale of
that case.
In Smith, one of the judgment debtors was beneficiary of a trust, which provided for
the trustee to collect the rents and the profits of the real estate that formed its corpus, for
payment to him, “into his own hands, and not into another, whether claiming by his
authority or otherwise,” Id. at 83, 14 A. at 497, and, upon his death, to convey the real estate
to the beneficiary's surviving children. Id. The appellant, having obtained a judgment against
the beneficiary of the trust and another, sought to satisfy the judgment by attaching the
income from the trust.
Perceiving that the case presented two issues: whether the testator intended to give
the income of the property to his son to the exclusion of his creditors and, if so, whether the
terms and provisions of the will effected that intention, 69 Md. at 83, 14A. at 497, the Court
had little difficulty resolving the first. As to that, we held:
“He not only gives the legal estate to the trustee, but he directs in express terms
that he shall pay the income into the hands of his son and not into the hands of
any other person, whether claiming by his authority, or in any other capacity.
Here then, is an express provision, that the income shall be paid to his son, and
an express prohibition against paying it to any other person. If the income in the
hands of the trustee is liable to the claims of creditors, the trustee it is plain could
not carry out the trust. So construing this will as we do, and it is not we think
susceptible of any other construction, the testator meant beyond all question that
the income should be paid into the hands of his son, to the the [sic] exclusion of
all other persons, whether claiming as alienees or as creditors.”
Id. at 84, 14 A. 497.
Turning to the next issue, we acknowledged that the English decisions and, indeed,
those of a majority of the States deciding the issue, held that a necessary incident to the
holding of an equitable estate, or an interest for life, was the right of alienation by the
beneficiary, with the result that, without regard to provisions by way of limitation or
otherwise, such estates are “liable for the payment of [the beneficiary's] debts.” Id. This
Court rejected the two grounds on which those decisions rested, i.e., “that the right of
alienation is a necessary incident to an equitable estate for life, and any restraint upon this
right is against the policy of the law which favors the ready alienation of property; and ... that
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public policy forbids that one should have the right to enjoy the income of property, to the
exclusion of his creditors,” Id. at 84, 14 A. 498. and, concluding that “the gift of an equitable
right to the income from property for the life of the beneficiary, to the exclusion of his
alienee,” Id. at 84, 14 A. 499, is neither a restraint on the right of alienation nor against public
policy, reached the opposite result.
Our reasoning is instructive on the issue sub judice. Acknowledging the rule favoring
the free and ready alienation of property and that “the right to sell and dispose of property ...
is a necessary incident of course to the absolute ownership of ... property,” Id. at 84, 14 A.
498, we pointed out that “the reasons on which the rule is founded do not apply to the
transfer of property in trust,” Id. at 84, 14 A. 499, and that “[t]he law does not ... forbid all
and any restraints on the right to dispose of [trust property], but only such restraints as may
be deemed against the best interests of the community.” Id. at 84, 14 A. 499. With regard to
the policy issue, we said:
“Now common honesty requires, of course, that every one should pay his debts,
and the policy of the law for centuries has been to subject the property of a
debtor of every kind which he holds in his own right, to the payment of his
debts. He has as owner of such property the right to dispose of it as he pleases,
and his interest is, therefore, liable for the payment of his debts. But a cestui que
trust does not hold the estate or interest in his own right; he has but an equitable
and qualified right to the property or to its income, to be held and enjoyed by the
beneficiary on certain terms and conditions prescribed by the founder of the
trust. The legal title is in the trustee, and the cestui que trust derives his title to the
income through the instrument by which the trust is created. The donor or
devisor, as the absolute owner of the property, has the right to prescribe the
terms on which his bounty shall be enjoyed, unless such terms be repugnant to
the law. And it is no answer to say that the gift of an equitable right to income to
the exclusion of creditors is against the policy of the law. This is begging the
question. Why is it against the policy of the law? What sound principle does it
violate? The creditors of the beneficiary have no right to complain, because the
founder of the trust did not give his bounty to them. And if so, what grounds
have they to complain because he has seen proper to give it in trust to be
received by the trustee and to be paid to another, and not to be liable while in the
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hands of the trustee to the creditors of the cestui que trust. All deeds and wills and
other instruments by which such trusts are created, are required by law to be
recorded in the public offices, and creditors have notice of the terms and
conditions on which the beneficiary is entitled to the income of the property.
They know that the founder of the trust has declared that this income shall be
paid to the object of his bounty to the exclusion of creditors, and if under such
circumstances they see proper to give credit to one who has but an equitable and
qualified right to the enjoyment of property, they do so with their eyes open. It
cannot be said that credit was given upon such a qualified right to the enjoyment
of the income of property, or that creditors have been deceived or mislead; and if
the beneficiary is dishonest enough not to apply the income when received by
him to the payment of his debts, creditors have no right to complain because
they cannot subject it in the hands of the trustee to the payment of their claims,
against the express terms of the trust.”
Id. at 88-89, 14 A. 499-500.
The appellant relies on that portion of the Court's reasoning that indicates that the
contract creditors are on notice, at least constructively, of the terms of the spendthrift trust
prior to extending credit, along with the fact that this Court, on public policy grounds, has
exempted certain obligations of the beneficiary of a spendthrift trust from the rule against
attachment or garnishment of the corpus or of the income in the hands of the trustee. He
also takes comfort from the position that treatise writers take with respect to the right of tort
judgment creditors to satisfy their judgments from a spendthrift trust; they agree with him
that it should be permitted.
In Scott on Trusts, Fourth Edition, § 157.5, while acknowledging the paucity of
authority on the subject, it is stated:
“In many of the cases in which it has been held that by the terms of the trust
the interest of a beneficiary may be put beyond the reach of his creditors, the
courts have laid some stress on the fact that the creditors had only
themselves to blame for extending credit to a person whose interest under
the trust had been put beyond their reach. The courts have said that before
extending credit they could have ascertained the extent and character of the
debtor's resources. Certainly, the situation of a tort creditor is quite different
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from that of a contract creditor. A man who is about to be knocked down by
an automobile has no opportunity to investigate the credit of the driver of
the automobile and has no opportunity to avoid being injured no matter
what the resources of the driver may be. It may be argued that the settlor can
properly impose such restrictions as he chooses on the property that he
gives. But surely he cannot impose restrictions that are against public policy.
It is true that the tortfeasor may have no other property than that which is
given him under the trust, and that the victim of the tort is no worse off
where the tortfeasor has property that cannot be reached than he would be if
the tortfeasor had no property at all. Nevertheless, there seems to be
something rather shocking in the notion that a man should be allowed to
continue in the enjoyment of property without satisfying the claims of
persons whom he has injured. It may well be held that it is against public
policy to permit the beneficiary of a spendthrift trust to enjoy an income
under the trust without discharging his tort liabilities to others.
“There is little authority on the question whether the interest of the
beneficiary of a spendthrift trust can be reached by persons against whom he
has committed a tort. In the absence of authority it was felt by those who
were responsible for the preparation of the Restatement of Trusts that no
categorical statement could be made on the question. It is believed, however,
that there is a tendency to recognize that the language of the earlier cases to
the effect that no creditor can reach the interest of a beneficiary of a
spendthrift trust is too broad, and that in view of the cases that have been
cited in the previous sections allowing various classes of claimants to reach
the interest of the beneficiary, the courts may well come to hold that the
settlor cannot put the interest of the beneficiary beyond the reach of those to
whom he has incurred liabilities in tort.”
Bogert on Trusts and Trustees, Second Edition, Rev’d § 224, p. 478 to like effect:
“[A] person who has a claim for damages against a spendthrift trust
beneficiary, based on the commission of a tort or other wrongful act (not
including a mere breach of contract) should be allowed to secure satisfaction
from the interest of the beneficiary, apparently on the ground that the
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contrary result would be against public policy. It is true that a tort creditor
has no chance to choose his debtor and cannot be said to have assumed the
risk of the collectability of his claim. The argument for the validity of
spendthrift trusts, based on the notice to the business world of the limited
interest of the beneficiary does not apply. It may be argued that the
beneficiary should not be permitted to circumvent the case and statute law as
to liability for wrongs by taking advantage of the spendthrift clause.”
A similar sentiment is expressed in Comment a to § 157 of the Restatement Second
of Trusts, wherein it is said:
“The interest of the beneficiary of a spendthrift trust ... may be reached in
cases other than those herein enumerated [alimony, child support, taxes], if
considerations of public policy so require. Thus, it is possible that a person
who has a claim in tort against the beneficiary of a spendthrift trust may be
able to reach his interest under the trust.”
Neither the argument advanced by the appellant, nor the support offered for it is persuasive.
To be sure, this Court has refused to hold, and on public policy grounds, spendthrift
trusts inviolate against indebtedness for alimony arrearages, Safe Deposit & Trust Co.,
Robertson, supra. 192 Md. at 662-63, 65 A.2d at 296, and for child support. Zouck v. Zouck,
supra. 204 Md. at 299, 104 A.2d at 579. Earlier, the United States District Court for the
District of Maryland had reached the same result, permitting a spendthrift trust to be
attached for the payment of United States income taxes. Mercantile Trust Co. v. Hofferbert, 58
F.Supp. 701, 705 (D.Md. 1944). Although decided on policy grounds, see, Article III, Section
38 of the Maryland Construction (providing that no person shall be imprisoned for failure to
pay a debt, but expressly excluding from the definition of debt valid court decrees for the
payment of support or alimony); Robertson, supra. 192 Md. at 663, 65 A.2d at 296 (“We rest
our decision upon grounds of public policy, not upon any interpretation of the instruments
in question, which are not broad enough to authorize payments by the trustee for the benefit
of a divorced wife.”; Zouck, supra. 204 Md. at 299, 104 A.2d at 579 (noting that “a contract by
a father to support a child, found by a court to be fair and reasonable, and so, judicially
decreed to be enforced, is the equivalent of the decree of a court awarding support to the
child or alimony to a wife, and as such, comes within the rule of public policy announced
and followed in the Robertson case”); Hofferbert, 58 F.Supp. at 705 (observing that the public
162

policy involved when claims of creditors are pitted against the validity of a spendthrift trust
is “quite different” when the claim is by the government for taxes); none of these cases was
premised on there having been a lack of notice given to the claimants as to the trust
beneficiary's limited interest in the trust. Rather, the courts recognized a fundamental
difference between these obligations and those of ordinary contract creditors.
In Robertson, we, like 1 Scott, Trusts, § 157.1, recognized, and clearly stated, that the
dependents of a spendthrift trust beneficiary “ ‘are not ‘creditors' of the beneficiary, and the
liability of the beneficiary to support them is not a debt.’ ” 192 Md. at 660, 65 A.2d at 295,
quoting Scott. Scott explained that these dependents, the beneficiary's wife and children,
could enforce their claim for support against the trust estate, because “it is against public
policy to permit the beneficiary to have the enjoyment of the income from the trust while he
refuses to support his dependents whom it is his duty to support, Id. at 661, 65 A.2d at 295,
their claim being “in quite different position from the ordinary creditors who have
voluntarily extended credit.” Id. Focusing specifically on alimony, at issue in that case, the
Court opined:
“We think the view expressed in the Restatement is sound. The reason for
the rejection of the common law rule, that a condition restraining alienation
by the beneficiary is repugnant to the nature of the estate granted, was simply
that persons extending credit to the beneficiary on a voluntary basis are
chargeable with notice of the conditions set forth in the instrument.... This
reasoning is inapplicable to a claim for alimony which in Maryland at least, is
‘an award made by the court for food, clothing, habitation and other
necessaries for the maintenance of the wife....’ The obligation continues
during the joint lives of the parties, and is a duty, not a debt.”
Id. at 662, 65 A.2d at 296 (citations omitted). See, also McCabe v. McCabe, 210 Md. 308, 314,
123 A.2d 447, 450 (1956). (“This Court has held that alimony represents a duty and not a
debt.”); Oles Envelop Corp. v. Oles, 193 Md. 79, 92, 65 A.2d 899, 905 (1949) (“The obligation
to pay alimony in a divorce proceeding is regarded not as a debt, but as a duty growing out
of the marital relation and resting upon sound public policy.”). Compare Hitchens v. Safe
Deposit & Trust Co. of Baltimore, 193 Md. 62, 67, 66 A.2d 97, 99 (1949) (specifically declining
to apply the rule announced in Robertson to claims for support that were not judiciallydecreed alimony, but arose pursuant to a contractual agreement to pay money).
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Similarly, in Zouck, the Court drew a distinction between the considerations
underlying the balance when the monetary obligation sought to be satisfied is a contract or
ordinary debt and when it is child support. It noted that the monetary claim in that case was
“based, in essence, upon the statutory obligation of the father, declaratory of the common
law, to support his child.” 204 Md. at 298, 104 A.2d at 579, See Walter v. Gunter, 367 Md. 386,
398, 788 A.2d 609, 616 (2002) (“This Court historically has recognized a distinction between
a standard debt and a legal duty in domestic circumstances, specifically with respect to child
support, and subscribes to the theory that child support is a duty not a debt.”); Middleton v.
Middleton, 329 Md. 627, 629-33, 620 A.2d 1363, 1364-66 (1993) (analyzing the debt/duty
distinction with respect to parental child support obligation). Moreover, pointing out that in
this case, the father agreed to meet the parental obligation to support his child by the
payment of $ 25.00 a week, and to this extent, exonerated the child's mother from her
obligation, the Court was emphatic:
“The fact that the father has recognized his obligation and has agreed in
writing to meet it in a specified amount, does not change his duty to a debt nor
does it create the relationship of ordinary contract debtor and creditor between
the father and the child, or the father and the mother, as the representative of
or trustee for the child.... His obligation remains the same whether it be
calculated and required by original order of **426 court, by voluntary
agreement, or by voluntary agreement specifically ordered to be performed by
order of court. Nor is it significant that the mother for some years has met the
obligation which the father violated, so that the money he promised to pay
week by week, would now be paid, under court order, in a lump sum.... The
fundamental nature of the support looked for by the agreement is not changed
because the husband is now required to pay at one time what he should have
paid week by week.”
Zouck, supra. 204 Md. at 298-99, 104 A.2d at 579 (citations omitted). We also made the point
that, “[i]n the case of a child, the obligation of the father to support, imposed by law, cannot
be bargained away or waived.” Id. The Court concluded, “the agreement by a parent to
support a child, declared to be reasonable and proper, and so, enforceable by a court,
constitutes an obligation which justifies the invasion of a spendthrift trust for its fulfillment.”
Id. at 300, 104 A.2d at 580.
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Similarly, the obligation to pay taxes and, thus, tax arrearages, is not to be considered
debt, nor is the government to be viewed as a mere creditor. Addressing and resolving this
very point, the Hofferbert court distinguished the public policy underlying the tax obligation
and that underlying ordinary or contract debts:
“The reasons which have actuated some courts, as in Maryland, to uphold
spendthrift trust against the claims of a creditors do not necessarily apply to
tax claims of the government either federal or State. The public policy
involved is quite different. In the one case the donor of the property has the
right to protect the beneficiary against his own voluntary improvident or
financial misfortune; but in the other the public interest is directly affected with respect
to collection of taxes for the support of the government. The imposition of the tax
burden is not voluntary by the beneficiary.”
Hofferbert, supra. 58 F.Supp. at 706 (emphasis added).
Ms. Ryon's estate is a mere judgment creditor of McGee, the beneficiary. The Trust
simply has no legal duty to Ms. Ryon's estate and certainly no obligation to provide support.
Thus the rationale underlying the decisions permitting the invasion of a spendthrift trust for
the payment of alimony, child support or taxes have absolutely no applicability to the
obligation in this case. Indeed, to permit the invasion of the Trust to pay the tort judgments
of the beneficiary, in addition to thwarting the trust donor's intent by, in effect, imposing
liability on the Trust for the wrongful acts of the trust beneficiary, is, as the appellees argue,
to create an exception for “tort victims” or “victims of crime.”
By equating, for purposes of determining whether to permit invasion of a spendthrift
trust, the tort judgment creditor with the dependents of a trust beneficiary, to whom the
beneficiary has a duty of support, or to the government, that is owed a duty to pay taxes, we
would create a distinction between debts and creditors and a basis for exempting such
creditors from the impediment to recovery that spendthrift trusts present. The appellant
offers a rationale for drawing the distinction, whether the interests of the creditor are “great
enough” to permit invasion of the trust. He relies on a portion of our discussion of the
validity of spendthrift trusts in Hoffman Chevrolet Inc. v. Washington County Nat. Sav. Bank, 297
Md. 691, 467 A.2d 758 (1983). After acknowledging that Maryland generally recognizes the
validity of spendthrift provisions, which prevent creditors from reaching trust funds and
concluding that, by “logical extension ... a spendthrift trust can effectively protect retirement
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benefits,” Id. at 706, 467 A.2d at 766, we commented: “The employer makes contributions
to the trust to provide for the employee upon retirement. The creditor's interests are not
great enough to permit an invasion of this trust.” Id. From this comment, the appellant
concludes: “... the Court accepted the concept that certain creditors' interests can be great
enough to ignore the ‘ spendthrift’ terms of a trust.” (Appellant's Brief at 7).
We are not convinced. This is a very slender reed on which to base such an
important concept. Moreover, given the context of the Court's comment, it is not at all
inconsistent with Robertson or Zouck.
To be sure, the Supreme Court of Mississippi quite recently held that, “as a matter of
public policy ... a beneficiary's interest in spendthrift trust assets is not immune from
attachment to satisfy the claims of the beneficiary's intentional or gross negligence tort
creditors.” Sligh v. First National Bank of Holmes County, 704 So.2d 1020, 1029 (Miss. 1997).
There, the plaintiff and his wife brought suit against an uninsured and intoxicated
motorist/defendant for injuries arising from a traffic accident which resulted in the plaintiff's
paralysis. The defendant was the beneficiary under two spendthrift trust established by his
late mother. Having obtained a default judgment for $5,000,000 in compensatory and
punitive damages in their action alleging gross negligence, the plaintiffs sought to attach the
defendant's interest under the spendthrift trusts.
In arriving at its holding, the court acknowledged the four exceptions to the rule
prohibiting the invasion of a spendthrift trust enumerated in the Restatement, i.e., claims: for
support of child or wife; for necessaries; for “services rendered and materials furnished
which preserve or benefit the interest of the beneficiary; for State or federal taxes, Id. at
1026, quoting Restatement (Second) of Torts §157, and a fifth, when the trust is ‘a selfsettled trust, i.e., where the trust is for the benefit of the donor,’ it had itself recognized Id.,
citing Deposit Guaranty Nat’l Bank v. Walter E. Heller & Co., 204 So.2d 856, 859 (Miss. 1967)..
Conceding that § 157 of the Restatement does not list an exception for involuntary tort
creditors, the court found support for its position in Comment a to that section, which, as
we have seen, admits of the possibility of a tort claimant with a claim against the beneficiary
of a spendthrift trust being able to reach that beneficiary's interest. Sligh, supra. 704 So.2d at
1026. It also was persuaded by those portions of Scott, The Law of Trusts and Bogert,
Trusts and Trustees, quoted herein and to which the appellant referred us. Id. at 1027.
Finally, the court rejected the three public policy considerations it identified from its own
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precedents upholding the validity of spendthrift trust provisions: “(1) the right of donors to
dispose of their property as they wish; (2) the public interest in protecting spendthrift
individuals from personal pauperism, so that they do not become public burdens; and (3) the
responsibility of creditors to make themselves aware of their debtors' spendthrift trust
protections.” Id. at 1027.
This is the minority position, which the Sligh court admitted. (citations omitted). In
Mintzer, the issue was whether a spendthrift trust could be attached for the payment of a
judgment for alimony awarded to the wife of the trust beneficiary. 100 Pa. at 154. Answering
in the negative, the court stated, broadly:
“The attachment issued on a debt of record fixed by judgment and decree.
Whether the judgment be for a breach of contract or for a tort, matters not.
The testator recognized no such distinction. He impressed on the fund
exemption from all kinds of legal process against the trustee, not only for
debts, but also for ‘all liabilities whatever’ of [the beneficiary].”
Id. at 154-55. In Kirk, the monies due to the beneficiary of a spendthrift trust were attached
to enforce the payment of a tort judgment. Although recognizing exceptions for alimony and
child support, the court held that the beneficiary's income from the trust could not be
attached prior to its receipt by him. 456 P.2d at 1010.
Other than language in Gibson v. Speegle, 494 A.2d 165, 1984 Del. Ch. Lexis 475,
characterizing as sound the conclusion of the authors of several respected treatises on trusts,
i.e., Scott, Bogert and Griswold, that “tort claimants should not be considered ‘creditors' for
purposes of a spendthrift trust provision” and an approving reference to Comment a to §
157 of the Restatement (Second) of Trusts in Helmsley-Spear, Inc. v. Winter, 101 Misc.2d 17,
20, 420 N.Y.S.2d 599, 601 (1979), and statutes codifying the result, Sligh is the only case we
have found, and the only case that the appellant has cited, which holds expressly that a
spendthrift trust may be invaded to pay the judgment of an intentional or gross negligence
tort-judgment creditor. See also St. Paul & Marine Ins. Co. v. Cox, 583 F.Supp. 1221, 1228-29
(N.D. Ala. 1984), aff'd. 752 F.2d 550 (11th Cir. 1985), in which the insurer of an employer,
who had been defrauded by his employee, a beneficiary under an ERISA trust, was
permitted to reach that employee's entire interest in the trust and, notwithstanding that the
employee was entitled to only periodic payments, to receive payment immediately.
Sligh is no longer the law of Mississippi. A mere five months after the decision in
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Sligh, by ch. 460, § 2, Laws, 1998, effective March 23, 1998, the Mississippi Legislature
passed the Family Trust Preservation Act of 1998. Miss Code Ann. §91-9-503 (2003),
relevant to this case, provides:
“Beneficiary's Interest not subject to transfer; restrictions on transfers and
enforcement of money judgments
“Except as provided in Section 91-9-509, if the trust instrument provides that a
beneficiary's interest in income or principal or both of a trust is not subject to
voluntary or involuntary transfer, the beneficiary's interest in income or
principal or both under the trust may not be transferred and is not subject to
the enforcement of a money judgment until paid to the beneficiary.”
In addition, while a New York State trial court in Helmsley-Spear, Inc. v. Winter, supra ,
101 Misc.2d 20, 20, 420 N.Y.S.2d at 601, had held that, because of his disloyalty, the interest
of a beneficiary, who had been convicted of stealing from his employer, in an employment
trust, was not exempt from attachment, despite the spendthrift provision applicable to it, on
appeal, the Appellate Division modified that decision, holding that the employee's interest
was exempt from the claims of tort creditors. 74 A.D.2d 195, 199, 426 N.Y.S.2d 778, 781
(1980), aff'd, 52 N.Y.2d 984, 438 N.Y.S.2d 79, 419 N.E.2d 11078 (1981). And in Speegle,
despite the Chancellor's favorable inclination toward tort-judgment creditors, a statute
prevented him from adopting the view he clearly favored. 1984 Del. Ch. Lexis 475, *6-7.
We are not persuaded, in any event, by the reasoning of the Sligh court. It is true that
the court acknowledged the exceptions for alimony and for child support. Missing from the
court's opinion, however, is any analysis of the basis for those exceptions. The Mississippi
Supreme Court, although noting the donor's intention as, perhaps, the most important
public policy consideration it addressed, concluded that, because the law has generally
recognized exceptions, i.e., for support, alimony, taxes, to the spendthrift doctrine, the rights
of trust donors to dispose of property as they wish are not absolute. 704 So.2d at 1028. This
statement, although accurate, does not analyze why the law carved out these particular
exceptions, which, as the court recognized, effectively takes precedence over the trust
donor's intent.
To be sure, a contract creditor is on notice as to the terms of a spendthrift trust and,
on that account, is able to regulate his or her conduct in light of that information. That is not
the critical basis for the exception of alimony and support from the rule, however. Robertson
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and Zouck, as our opinions make clear, relied heavily on the fact that the obligation was a
duty and not a debt. Robertson supra, 192 Md. at 660, 65 A.2d at 295; Zouck, supra. 204 Md. at
298-99, 104 A.2d at 579. That is also the theme that runs through Hofferbert, 58 F.Supp. at
705. In none of these cases was notice mentioned as a basis for the decision. That a tortjudgment creditor is not on notice that he or she will be injured and thereby will incur a loss
goes without saying, but, with due respect to the near unanimous commentators, that fact
alone does not make the claim he or she makes in respect of the loss anything other than a
debt or make its exemption from the bar of a spendthrift trust, a matter of public policy.
There is another reason that we reject the appellant's attempt to obtain an exemption
from the bar of the spendthrift trust. Our case law reflects, as the appellant points out, that
this Court has, over time, expanded the class of persons permitted to invade a spendthrift
trust in satisfaction of obligations owed by beneficiaries, and, as a natural consequence of
that expansion, frustrated, in some cases, the intent of the trust settlors. The exceptions to
the spendthrift doctrine were recognized by this Court based on clear public policy
considerations. The public policy that the appellant identifies and on which he relies is that
of prohibiting criminals from benefitting financially from their crimes. As indicated, to
establish the existence of the public policy, he points to the “Son of Sam” statute, the
Slayer's Rule and the Prisoners' Litigation Act. Proceeding from that premise, he argues that
McGee, a convicted felony murderer, should not be allowed to receive benefits from the
trust to the exclusion of his creditors.
Certainly, the public policy of this State does not countenance a system wherein
criminals are allowed to derive a financial benefit from their illegal activity, thus putting the
lie to the oft stated admonition, “crime does not pay.” In fact, this State has announced, it is
true, a clear public policy in that regard. We, however, agree with the appellees that the
public policy goals on which the appellant's arguments are based, as strong and clear as they
are, have no applicability to the case sub judice and, thus, do not, and cannot, inform our
decision. McGee is not, in any discernible manner, benefitting from the crime for which he
was convicted and ultimately imprisoned. Clearly, any benefit McGee receives from the
Trust vested prior to the commission of his criminal acts and is completely independent of,
and separate from, his criminal conviction. As the appellees point out, “McGee's situation is
not in any way analogous to one where a criminal is ‘rewarded’ for his criminal acts by means
of book, television, or movie royalties, or by inheriting from his victim's estate.” Unlike the
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criminal at whom the “Son of Sam” legislation and the Slayer's Rule are aimed, the benefit
McGee derives from the Trust and the criminal acts he committed are not related at all. The
technically and legally more accurate statement is that McGee is benefitting from his status
as a life beneficiary under a trust established by his deceased mother. It is simply incorrect to
say that McGee is, in any manner, benefitting from his crimes. Consequently, we decline to
frame our analysis on the public policy goals set forth by the appellant.
Judgment Affirmed, With Costs.
BATTAGLIA, J., Dissenting.
Katherine Ryon was beaten to death during the course of a robbery that occurred in
her home. After James Calvert McGee was convicted of felony-murder for his participation
in the robbery and murder of Ms. Ryon, a money judgment was entered against him
pursuant to a settlement agreement, in which McGee compromised civil claims brought
against him by Robert Duvall, the Personal Representative of the Estate of Ms. Ryon. The
majority today concludes that Ms. Ryon's estate cannot enforce its judgment against
McGee's interest in an $877,000.00 spendthrift trust established for him by his deceased
mother. The majority acknowledges that claimants seeking alimony, child support, and
unpaid taxes may attach a beneficiary's interest in a spendthrift trust, but concludes that the
victim of a violent tort may not, reasoning that such a victim is only “a mere judgment
creditor.” For the reasons expressed herein, I respectfully disagree.
A spendthrift trust is a trust that restrains the voluntary or involuntary transfer of a
beneficiary's interest in the trust. See Restatement (Second) of Trusts § 152(2)(1959). As the
majority points out, this Court first acknowledged the validity of spendthrift trusts in Smith v.
Towers, 69 Md. 77, 14 A. 497 (1888). In that case, our predecessors recognized that although
“the right to sell and dispose of property ... is a necessary incident ... to the absolute
ownership of ... property,” the “law does not ... forbid all and any restraints on the right to
dispose of [trust property].” Id. at 87-88, 14 A. at 498-99. The law forbids, “only such
restraints as may be deemed against the best interests of the community.” Id. at 88, 14 A. at
499. “The donor or devisor” of trust, the Smith court stated, is “the absolute owner of the
property” and “has the right to prescribe the terms on which his bounty shall be enjoyed,
unless such terms be repugnant to the law.” Id. at 88-89, 14 A. at 499. The Smith court
reasoned that the gift of an equitable right to the exclusion of creditors is not “repugnant to
the law” because “[a]ll deeds and wills and other instruments by which such trusts are
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created, are required by law to be recorded in the public offices, and creditors have notice of
the terms and conditions on which the beneficiary is entitled to the income of the property.”
Id. Thus, if creditors choose to extend credit to such debtors, “they do so with their eyes
open.” Id.
Ms. Ryon, of course, did not have the luxury of assessing the extent and character of
McGee's financial resources before he robbed her and she died. For this reason, most legal
scholars agree that tort creditors should not be precluded from recovering against a
tortfeasor's interest in a spendthrift trust. According to Scott on Trusts,
A man who is about to be knocked down by an automobile has no opportunity to
investigate the credit of the driver of the automobile and has no opportunity to avoid being
injured no matter what the resources of the driver may be.... [T]here seems to be something
rather shocking in the notion that a man should be allowed to continue in the enjoyment of
property without satisfying the claims of persons whom he has injured. It may well be held
that it is against public policy to permit the beneficiary of a spendthrift trust to enjoy an
income under the trust without discharging his tort liabilities to others.
Similarly, and significantly, in Bogert on Trusts and Trustees, it is emphasized that,
“the validity of spendthrift trusts ... does not apply” and that the beneficiary should not,
therefore, “be permitted to circumvent the case and statute law as to liability for wrongs by
taking advantage of the spendthrift clause.”
The majority concedes that tort creditors do not have the benefit of notice, which, as
was discussed in Smith, supra, is a primary purpose for not allowing the invasion of
spendthrift trusts. Despite this, the majority concludes that Ms. Ryon's estate cannot reach
the corpus of the spendthrift trust because its claim is nothing other “than a debt” and that
“its exemption from the bar of a spendthrift trust” is not “a matter of public policy.” The
majority, in my opinion, is wrong.
This Court has held that a beneficiary's interest in a spendthrift trust may be attached
to satisfy claims for alimony arrearages and for child support. (citations omitted) Also, a
spendthrift trust was attached for the payment of federal income taxes in Mercentile Trust Co.
v. Hofferbert, 58 F.Supp. 701, 705-06 (D.Md. 1944). “[N]one of these cases,” the majority
states, “was premised on there having been a lack of notice.... Rather, the courts recognized a
fundamental difference between these obligations and those of ordinary contract creditors.”
The fundamental difference is essentially that these obligations were premised upon judicial
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intervention and determination of sound public policy.
Just as it is sound public policy to permit the attachment of a spendthrift trust for
alimony, child support, and taxes, it is also as sound to permit invasion to make victims of
tortious conduct whole. Indeed, a tortfeasor may be liable not only for compensatory
damages, but also punitive damages, which we allow in order to “punish the wrongdoer and
to deter such conduct by the wrongdoer and others in the future.” Caldor, Inc. v. Bouden, 330
Md. 632, 661, 625 A.2d 959, 972 (1993). Consequently, to equate victims of tortious conduct
with contract creditors and distinguish them from recipients of alimony, child support, and
tax claims, is without merit.
As the majority concedes, spendthrift trusts are considered valid in Maryland in large
part because, by virtue of filing requirements, creditors are put on at least constructive notice
of the limited interest of the beneficiary of such a trust. Such notice allows creditors to
protect themselves, something that Ms. Ryon could not have done. Moreover, the “dutydebt” distinction set forth by the majority as the basis for its holding is unavailing. The
obligation to restitute a wrong is commensurate with the obligations to pay alimony, child
support, and taxes. I agree with the commentators that “it is against public policy to permit
the beneficiary of a spendthrift trust to enjoy an income under the trust without discharging
his tort liabilities to others.” See Scott on Trusts, supra. Consequently, I respectfully dissent.
Class Discussion Tool
Henry created a trust for the benefit of his son, Marvin. Henry told all of his friends
that he was creating the trust because he was afraid that Marvin would end up living on the
street. He told his friend, Maggie, “If I give that loser son of mine any money, he would be
broke in a month. He never met a credit card he didn’t like.” The language of the trust
stated, “I leave my entire estate in trust to Oscar for the benefit of my son, Marvin.” After
Henry died, Oscar assumed his role as trustee. Marvin was depressed over his father’s death,
so he went on a shopping spree for a week. As a result, he ended up owing $40,000 to
American Express. American Express got a $40,000 judgment against Marvin. Oscar felt
sorry for Marvin, so he gave him $10,000 in cash to go to a spa. Marvin placed the $10,000
in his checking account. Then, Susan, Marvin’s ex-wife agreed to lend Marvin the money to
pay $15,000 of his American Express bill. Susan took the money from their son Kenneth’s
college fund. When Kenneth found out about the loan, he sued his father’s trust to recover
the money. American Express attempted to attach the money in Marvin’s checking account.
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Marvin also signed a contract to pay Dr. Roberts $80,000 to give his girlfriend, Peggy breast
implants. After Marvin refused to pay him, Dr. Roberts sued the trust based upon the
contract. Please analyze all of the relevant legal issues.

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Chapter 6 - Modification and
Termination of Trusts
A trust may be modified or terminated in several different ways. First, the terms of
the trust may dictate the duration of the trust. For instance, O may give Blackacre in trust to
A for the benefit of B for life. The trust will end when B dies. Further, language in the trust
instrument may indicate the manner in which the trust may be modified. Consider the
following example. O gives a certain sum of money in trust to A for the benefit of B. A is
instructed to pay B $1000 per month. In the event that B becomes incapacitated, B has the
power to modify or terminate the trust. The testator could also give an independent third
party the authority to modify or terminate the trust. With regards to an inter vivos trust, the
settlor can revoke the trust if she has retained the right in the trust instrument. If the settlor
and all of the beneficiaries consent, an irrevocable inter vivos trust may be modified or
terminated. A testamentary trust can be terminated by consent of all of the beneficiaries as
long as a material purpose of the trust does not exist. For instance, if the testator establishes
a trust to pay for her children’s education, the trust cannot be terminated as long as one of
the testator’s children have not received the requisite education.
Under the doctrine of merger, a trust is terminated if the legal and equitable title to
the trust property ends up in the hand of one person. For example, Mary created a trust
naming Peter and Paul as trustees of Brownacre. Peter and Paul conveyed their legal title to
John, the only beneficiary of the trust. As a result, the trust terminates and John receives fee
simple title to Brownacre. In order for Peter and Paul to become the owners of the
Brownacre free of the trust, John could convey his equitable interest in Brownacre to Peter
and Paul. John’s equitable interest would merge with Peter and Paul’s legal interest to give
them the fee simple title to Brownacre. A trust may also be terminated if it runs out of
property. For instance, if the testator places a certain amount of money in trust, the trust will
cease to exist once the trustee has spent all of the money. According to the terms of the
testamentary trust included in Whitney Houston’s will, her daughter, Bobbi Christina, is to
receive all of the money in the trust when she reaches the age of 30. Once the trustee
disburses the money to Bobbi Christina, the trust is extinguished.

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6.1

Termination

In the Matter of the Estate of Bonardi, 871 A.2d 103
PARRILLO, J.A.D.
This is an appeal from a judgment of the Superior Court, Chancery Division,
certified as final, Rule 4:42-2, permitting termination of a testamentary trust. For the
following reasons, we reverse.
William Bonardi died testate on March 9, 2002, survived by his wife, Donna, and his
two daughters, Danielle and Jessica. At the time of his death, Danielle was eighteen-years old
and Jessica was sixteen-years old. Although decedent's Will included some specific bequests
to other individuals, his wife and two daughters were the primary beneficiaries under
separate testamentary trusts, each made up of one-half of the residuary estate. Stephen F.
Pellino, decedent's friend, was named Executor of decedent's estate and Trustee of the two
testamentary trusts.
The first trust named plaintiff, Donna Bonardi, as the income beneficiary and
devised the remainder to Danielle and Jessica. The second trust named the daughters as the
only beneficiaries. In both instances, the daughters were not entitled **105 to outright
distribution of their interest before they reached the age of twenty-five.
Under the first trust, plaintiff's interest was subject to several terms and conditions.
Paragraph TENTH of decedent's Will reads, in pertinent part:
For the duration of the life of my wife, DONNA, the Trustee shall pay her or
apply towards her benefit, all of the net income of this trust. In addition, the
Trustee may pay to her or apply to her benefit such amounts of the principal of
the Trust as the Trustee, in the exercise of the Trustee's absolute discretion,
deems advisable for her welfare. In deciding to make such distributions of
principal to or for DONNA'S benefit, the Trustee shall be guided by the
following statement of my purposes and intentions: It is my expectation that the trust
income and principal will not be made available to provide primary support for the beneficiary,
as I expect that DONNA in complete or large measure will support herself. I
further direct that my Trustee shall, to the extent possible, not make payments to DONNA
out of principal unless necessary, and that he rather seek to preserve the corpus, to the extent
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possible, for ultimate distribution to my children or survivor of them. My Trustee shall have
complete authority to make these determinations which I direct shall not be
subject to legal challenge. In making determinations as to distributions of
principal for DONNA'S benefit, I ask that my Trustee be mindful of the
standard of living that we maintained during my lifetime.
[emphasis supplied.].
Explaining the limitations imposed pursuant to this paragraph, Pellino certified that
decedent had expected his wife, who had gone to school and obtained a nursing degree
during the marriage, to work in the nursing field on a full-time basis after his death.
According to Pellino, decedent was also concerned about “his wife's inappropriate use of
alcohol” and feared “that if the estate's assets were left to Donna outright, she would
continue to lead this lifestyle which he felt was inappropriate, unhealthy and against his
wishes.” Further, decedent “did not want the proceeds of his hard work to be used for the
benefit of any future boyfriend or husband that Donna might choose.” None of these
concerns, however, was expressly addressed by a spendthrift provision in the trust or
anywhere else in the Will.
Even so, decedent evidenced his intent elsewhere in the Will. Notably, paragraph
ELEVENTH, which concerned the daughters' trust, provided that “the trust income and
principal will not be made available for primary support for the beneficiary as I expect that
my wife will contribute to their support....” Further, paragraph TWELFTH granted the
Trustee the exclusive right to “deal with [the] corpus and the income of such trusts.” Only if
the accumulated income from the trust was insufficient could the Trustee invade the
principal.
A dispute eventually arose between plaintiff and the Executor/Trustee over the
amount necessary for plaintiff's support. Plaintiff claimed that because she was only able to
work part-time due to chronic medical problems, her living expenses exceeded her income,
including the amounts made available to her by the Trustee under the first testamentary
trust. Essentially, she complained that Pellino was improperly withholding principal
necessary for her support and requested immediate distribution of all principal in the trust.
While acknowledging that plaintiff's payments from the trust had decreased over
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time, Pellino insisted the reductions were necessary to preserve the corpus and carry out the
trust's purpose. He explained that he initially allowed plaintiff to control all the finances in
order to ease the transition after her husband's death, and that he paid her $8,000 per month
when he first took over as Trustee, but that she was advised the payments would be reduced
because she was expected to work and contribute towards her own support. As significantly,
Pellino certified that the net monthly income from Donna's trust was only $2,845, yet he was
paying plaintiff $4,545 per month, thereby depleting the principal by as much as $1,700 per
month. Pellino also disputed plaintiff's assertion that she could only work part-time, stating
that she had “resisted any discussion of where she works, how much she earns, how many
hours she works, and why she is unable to earn more.”
On account of this impasse, on December 16, 2003, plaintiff filed an action in the
Chancery Division to compel formal accountings of her husband's estate and the
testamentary trust created on her behalf, and to direct the immediate distribution to her of
all net income as well as principal held pursuant to that trust necessary to maintain the
marital standard of living. Simultaneously, decedent's two daughters filed a separate
complaint, also seeking a formal estate accounting and distribution of income and/or
principal from the second trust created under their father's Will for their exclusive benefit.
On the return date of the orders to show cause, the trial judge issued a consolidated order
requiring the Executor to provide an informal accounting by March 15, 2004, and to
examine the financial requests of the beneficiaries “in the context of their needs and the
intent of the testator.” Pursuant to that order, Pellino rendered a timely accounting, and
plaintiffs' counsel was given an opportunity to examine all of the estate's financial records.
Sometime thereafter, the two complaints were consolidated and the action proceeded on the
respective claims for distribution under a single docket number
On May 12, 2004, Danielle and Jessica Bonardi executed a waiver of their remainder
interest in the trust established on behalf of their mother so that the corpus could be
immediately distributed to her. Pellino, however, refused to accept the waiver. As a result,
the daughters filed a motion to terminate the testamentary trust, supported by certifications
stating they understood they would inherit one-half of the trust principal upon their mother's
death, but believed it was in their best interest if the trust were terminated and the corpus
made immediately available to their mother. At the time, both daughters were living with
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their mother and under the age of twenty-five: Danielle, being only twenty years old, and
Jessica, eighteen.
Following oral argument, the judge granted the motion and terminated the
testamentary trust, directing distribution of the daughters' remainder interest in trust
principal to plaintiff, Donna Bonardi. Mistakenly believing that “all beneficiaries [were] at
least twenty-one years old,” the judge reasoned in part:
New Jersey permits the termination of a trust upon consent of all beneficiaries
(even if the trust is discretionary) where the income beneficiary is different from
the remainder beneficiary. 6 Clapp. New Jersey Practice: Wills and Administration
§543 (3d ed. 1982). This is so because the testator did not establish the trust
because of an especial lack of confidence in the income beneficiary's ability to
manage the fund. Id. Instead, the testator may possibly have wished to save estate
and inheritance taxes on the income beneficiary's death, or he may have had
some other motive. Id. In any event, there being no other manifestation of
intention in the Will bearing on the subject, the testator probably would not
object if all the beneficiaries consent to the termination of the trust. 3 Scott,
Trusts § 337.1.
On appeal, the Executor/Trustee maintains, among other things, that termination of
the testamentary trust frustrates and defeats the express intent of the testator and is,
therefore, impermissible. He further argues that the judge's finding that the testator's
probable intent was to the contrary was unsupported by the evidence and constituted error.
We agree with those contentions and reverse.
It is well-settled that a court's primary function is to enforce the testator's expressed
intent with respect to a testamentary trust. Fidelity Union Trust Co. v. Margetts, 7 N.J. 556, 566,
82 A.2d 191 (1951); In re Ransom Testamentary Trust, 180 N.J.Super. 108, 117, 433 A.2d 834
(Law Div. 1981); Cinnaminson Tp. v. First Camden Nat’l Bank & Trust Co., 99 N.J.Super. 115,
127, 238 A.2d 701 (Ch. Div. 1968). Our duty is to “uphold testamentary dispositions of
property, made through the medium of trusts, instead of searching for reasons for avoiding
them, or dealing with them with any degree of disfavor.” Fidelity Union, supra. 7 N.J. at 565,
82 A.2d 191 (internal citation omitted). In this regard, the whole will must be examined to
ascertain the purpose of the testator. Ibid.
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To be sure, all the beneficiaries of a testamentary trust can consent to the trust's
termination if none of them is under an incapacity and continuance of the trust is no longer
necessary to carry out a material purpose of the trust. Fidelity Union, supra. 7 N.J. at 566, 82
A.2d 191; In re Ransom Testamentary Trust, supra., 180 N.J.Super. at 120, 433 A.2d 834;
Restatement (Second) of Trusts § 337 (1959). Thus, if all of the purposes of the trust have
been carried out, or if the only purpose remaining unfulfilled is to confer upon certain
beneficiaries interests successively in possession and in remainder, then all persons in
interest, if they are sui juris, may jointly compel termination of the trust. Bd. Of Dir. of Ajax
Electrothermic Corp.v. First Nat’l Bank of Princeton, 33 N.J. 456, 465, 165 A.2d 513 (1960). Ajax
II ); 6 Alfred C. Clapp et al., New Jersey Practice Series § 542 (3d Ed.1982).
On the other hand:
If a trust is created for successive beneficiaries and it is not the only purpose
of the trust to give the beneficial interest in the trust property to one
beneficiary for a designated period and to preserve the principal for the other
beneficiary, but there are other purposes of the trust which have not been
fully accomplished, the trust will not be terminated merely because both of
the beneficiaries desire to terminate it, or one of them acquires the interest of
the other.
[Restatement (Second) of Trusts, supra. § 337 comment g.].
Indeed, one of the conditions which must exist before a trust will be accelerated or
terminated, even upon application of all the parties in interest, “is that every reasonable
ultimate purpose of the trust's creation and existence has been accomplished and that no fair
and lawful restriction imposed by the testator will be nullified or disturbed by such a result.”
Fidelity Union, supra. 7 N.J. at 570, 82 A.2D 191.
Even where the beneficiary is the sole party in interest and of full age, and the trust is
not a spendthrift trust, the beneficiary may not automatically have it terminated, irrespective
of the creator's intention. Where, for instance, the trustee has active duties, the trust is not
terminable as a matter of right at the demand of the beneficiary, even though the beneficiary
is given the disposition at death. Id. at 564, 82 A.2d 191.
Further, spendthrift trusts, trusts for support of a beneficiary, and discretionary
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trusts cannot be terminated by consent of the beneficiaries. Restatement (Second) of Trusts, supra,
§ 337 at comments l, m, and n. This is because the material purpose of a spendthrift trust is
to prevent anticipation or control of future income or corpus by the protected income
beneficiary and, therefore, acceleration of the trust would directly contravene the testator's
intent. Heritage Bank North N.A. v. Hunterdon Medical Center, 164 N.J. Super. 33, 36, 395 A.2d
552 (App. Div. 1978). Moreover, “even if not of an express spendthrift nature, a trust
nevertheless created for the primary purpose of ensuring the beneficiary's support and
maintenance is not terminable by consent since such termination would obviously also
contravene testamentary intent.” Ibid. And, the fact that a trustee has the power to invade
the corpus for the beneficiary's benefit does not negate a testator's intent to establish such a
trust. Id. at 37, 395 A.2d 552. In short, “[t]he question for determination is whether the
settlor had any other purpose in mind than to enable the beneficiaries to successively enjoy
the trust property.” Baer v. Fidelity Union Trust Co., 133 N.J. Eq. 264, 266, 31 A.2d 823 (E & A
1943).
Here, a material purpose of the trust not only still remains, but would be soundly
defeated by the daughters' renunciation of trust corpus in favor of their mother, the income
beneficiary whose right to principal was expressly limited under the terms of the trust. First
and foremost, the request is not simply to terminate the trust and accelerate distribution to
the intended successive beneficiaries, but quite the opposite, to divest the remaindermen of
their interest and divert the trust corpus instead to the income beneficiary. This, however, is
directly contrary to the express testamentary plan, evident from the face of the language of
the Will itself. As stated in paragraph EIGHTH and provided for in paragraph TENTH, the
clear purpose of the trust is to preserve the corpus for the ultimate benefit of decedent's
daughters “per stirpes and not per capita.” Thus, if one or both of the daughters were to
predecease plaintiff, their children-decedent's grandchildren-would acquire their mother's
interest in the trust. However, if the relief requested were to be granted, not only would
Danielle and Jessica be divested of their remainder interest, but the rights of the putative
grandchildren would be defeated as well, cf. In re Estate of Branigan, 129 N.J. 324, 609 A.2d
431 (1992), hereby frustrating the testator's clear intent. Plainly, in this instance, acceleration
and termination of the trust would have resulted in a distribution to a person other than
those intended by the testator. Cf. Ajax Electothermic Corp. v. First Nat. Bank of Princeton, 7 N.J.
82, 87-88, 80 A.2d 559 (1951)(Ajax I ).
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Another purpose of the trust, evidenced in paragraph TENTH, was to provide
supplemental support and maintenance for plaintiff without making trust income and
principal “available to provide primary support.” Rather, the announced expectation was
that plaintiff would “in complete and large measure” support herself and “contribute to [the
daughters'] support as may be appropriate to their age and circumstance from time to time.”
In fact, payments out of principal were not to be made to plaintiff unless absolutely
necessary for her welfare. And, in making this determination, the trustee was vested with
“absolute discretion.” Indeed, the express terms of the Will divested plaintiff of actual
control over the estate's assets. Thus, the creation of a trust with “complete authority” in a
trustee evidences testator's plain intent to deny plaintiff immediate distribution of, or control
over, distribution of trust corpus. See Heritage Bank, supra. 164 N.J. Super. At 37, 395 A.2d
552.
It also demonstrates the testator's intent to insulate trust principal from any control
exerted by the daughters during their mother's lifetime. The language of paragraph
EIGHTH, which states that neither Danielle nor Jessica is entitled to her respective
remainder share before she reaches the age of twenty-five, supports this construction. By
selecting a specific age as the earliest time at which his daughters may receive outright
distribution of principal, the testator implicitly negated their ability to affect the trust before
then. Yet, when Danielle and Jessica made the mutual decision to renounce their respective
remainder interests, they were only twenty and eighteen years of age respectively, living with
their mother, and presumably still under her influence. Cf. Archard v. Mesmer, 110 N.J.Super.
560, 562, 266 A.2d 314 (App. Div. 1970)(holding that mutual promises, unsupported by
valuable consideration, to equally divide expected interests in an estate will ordinarily not be
enforced because they thwart the plain wishes of the testator and are fraught with
opportunities for fraud). Clearly, such decision-making by those otherwise ineligible under
the explicit terms of the Will contravenes the testator's plain intent. And, the expressed
wishes of the testator to preserve trust corpus for the benefit of his children or their
survivors simply cannot be reconciled with the family settlement struck in this case that
achieves diametrically opposite results. The named remaindermen not having yet attained the
age to exert control over the trust corpus, a material purpose of the trust still exists and
would be completely frustrated by its premature termination and distribution of principal to
plaintiff, an unintended beneficiary.
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Plaintiff's reliance on Ajax II, supra, to justify the relief sought in this case is
misplaced. Ajax II dealt with a situation exactly opposite of that presented herein, involving
not a renunciation by the remaindermen, but rather a waiver by a life tenant who was
entitled to a fixed monthly disbursement. 33 N.J. at 460, 163 A.2d 513. In return for her
release of her $150 per month life interest in the trust, the corporate remainderman
established an annuity that provided the life tenant with a benefit greater than that which she
was receiving under the testamentary trust. Ibid. The Court found this circumstance
consistent with the testator's intention and, therefore, sufficient to justify acceleration and
termination of the trust so that the intended beneficiaries could immediately receive
distribution of the corpus Id. at 469, 165 A.2d 513. Here, of course, the relief requested
would not result in an accelerated distribution of trust corpus to the intended beneficiaries,
but rather a diversion of principal to someone expressly ineligible under the trust.
We disagree with the trial court's construction of the Will to the contrary. We find no
basis in the record, or in the rather plain language of the testamentary instrument, for the
judge's conclusions that the testator “did not establish the trust because of an especial lack of
confidence in the income beneficiary's ability to manage the fund[,]” and that “the testator
may possibly have wished to save estate and inheritance taxes on the income beneficiary's
death, or he may have had some other motive.” The former, in fact, is belied by the record
evidence and the latter amounts to no more than rank speculation. Although we are sensitive
to the deference to which the trial court's findings are entitled, that deference is predicated
upon adequate evidentiary support for those findings. Rosa Farms Resort. Inc. v. Investors Ins.
Co. 65 N.J. 474, 483-84, 323 A.2d 495 (1974). Our review of the record constrains us to
conclude that the evidence did not warrant the determination that “the testator probably
would not object if all the beneficiaries consent to termination of the trust.”
We are convinced of just the opposite. The relief requested here defeats the
testamentary plan, evidenced from the face of the instrument itself, and contravenes the
expressed wishes of the testator.
Reversed.

6.2

Claflin and Material Purpose
In Clafin v. Clafin, 20 N.E. 454 (Mass. 1889), the testator created a trust to benefit her
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son. According to the terms of the trust, the trustee was to terminate the trust and pay the
principal to the son when he reached the age of thirty. When he turned twenty-one, since he
was the only beneficiary of the trust, the son went to court to have the trust terminated, so
he could receive the money. The court ruled against the son establishing the rule that a trust
cannot be modified or terminated early if a material purpose of the trust has not been
accomplished. This rule referred to as the Clafin doctrine is still applicable. Consequently, it
is important for the court to determine the purpose of the trust. That task is usually easy
because the purpose is often stated in the trust instrument.

In re Estate of Brown, 528 A.2d 752
GIBSON, Justice.
The trustee of a testamentary trust appeals an order of the Washington Superior
Court granting the petition of the lifetime and residual beneficiaries of the trust to terminate
it and to distribute the proceeds to the life tenants. We reverse.
The primary issue raised on appeal is whether any material purpose of the trust
remains to be accomplished, thus barring its termination. The appellant/trustee also raises
the closely related issue of whether all beneficiaries are before the court, i.e., whether the
class of beneficiaries has closed.
Andrew J. Brown died in 1977, settling his entire estate in a trust, all of which is held
by the trustee under terms and conditions that are the subject of this appeal. The relevant
portion of the trust instrument provides:
(3) The ... trust ... shall be used to provide an education, particularly a college
education, for the children of my nephew, Woolson S. Brown. My Trustee is hereby
directed to use the income from said trust and such part of the principal as may be
necessary to accomplish this purpose. Said trust to continue for said purpose until
the last child has received his or her education and the Trustee, in its discretion, has
determined that the purpose hereof has been accomplished.
At such time as this purpose has been accomplished and the Trustee has so
determined, the income from said trust and such part of the principal as may be necessary shall be
used by said Trustee for the care, maintenance and welfare of my nephew, Woolson S. Brown and
his wife, Rosemary Brown, so that they may live in the style and manner to which they are
accustomed, for and during the remainder of their natural lives. Upon their demise, any
remainder of said trust, together with any accumulation thereon, shall be paid to
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their then living children in equal shares, share and share alike. (Emphasis added.)
The trustee complied with the terms of the trust by using the proceeds to pay for the
education of the children of Woolson and Rosemary Brown. After he determined that the
education of these children was completed, the trustee began distribution of trust income to
the lifetime beneficiaries, Woolson and Rosemary.
On June 17, 1983, the lifetime beneficiaries petitioned the probate court for
termination of the trust, arguing that the sole remaining purpose of the trust was to maintain
their lifestyle and that distribution of the remaining assets was necessary to accomplish this
purpose. The remaindermen, the children of the lifetime beneficiaries, filed consents to the
proposed termination. The probate court denied the petition to terminate, and the
petitioners appealed to the Washington Superior Court. The superior court reversed,
concluding that continuation of the trust was no longer necessary because the only material
purpose, the education of the children, had been accomplished. This appeal by the trustee
followed.
Ordinarily, a trial court's conclusions will be upheld where they are supported by its
findings. Darmouth Savings Bank v. F.O.S. Associates, 145 Vt. 62, 66, 486 a.2d 623, 625 (1984.
Here, the superior court's conclusion that the trust could be terminated because the material
purpose of the trust had been accomplished has an insufficient basis in its findings, and this
conclusion cannot stand.
An active trust may not be terminated, even with the consent of all the beneficiaries,
if a material purpose of the settlor remains to be accomplished. See, e.g., Ambros v. First
National Bank, 87 Nev. 114, 117, 482 P.2d 828, 829 (1971); Sundquist v. Sundquist, 639 P.2d
181, 187 (Utah 1981); Restatement (Second) of Trusts § 337 (1959); 4 A. Scott, Scott on
Trusts § 337 at 2655 3d ed. 1967). This Court has invoked a corollary of this rule in a case
where partial termination of a trust was at issue. In re Bayley Trust, 127 Vt. 380, 385, 250 A.2d
516, 519 (1969).
As a threshold matter, we reject the trustee's argument that the trust cannot be
terminated because it is both a support trust and a spendthrift trust. It is true that, were
either of these forms of trust involved, termination could not be compelled by the
beneficiaries because a material purpose of the settlor would remain unsatisfied. See
Restatement (Second) of Trusts § 337.
The trust at issue does not qualify as a support trust. A support trust is created where
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the trustee is directed to use trust income or principal for the benefit of an individual, but
only to the extent necessary to support the individual. 2 A. Scott, Scott on Trusts § 154, at
1176; G. Bogert, Trusts and Trustees § 229, at 519 (2d ed. Rev. 1979). Here, the terms of the
trust provide that, when the educational purpose of the trust has been accomplished and the
trustee, in his discretion, has so determined, “the income ... and such part of the principal as
may be necessary shall be used by said Trustee for the care, maintenance and welfare of ...
[Rosemary and Woolson Brown] so that they may live in the style and manner to which they
are accustomed....” The trustee has, in fact, made the determination that the educational
purpose has been accomplished and has begun to transfer the income of the trust to the
lifetime beneficiaries. Because the trustee must, at the very least, pay all of the trust income
to beneficiaries Rosemary and Woolson Brown, the trust cannot be characterized as a
support trust.
Nor is this a spendthrift trust. “A trust in which by the terms of the trust or by
statute a valid restraint on the voluntary and involuntary transfer of the interest of the beneficiary is
imposed is a spendthrift trust.” Restatement (Second) of Trusts § 152(2). (Emphasis added.)
While no specific language is needed to create a spendthrift trust, id. at comment c, here the
terms of the trust instrument do not manifest Andrew J. Brown's intention to create such a
trust. See Huestis v. Manley, 110 Vt. 413 419, 8 A.2d 644, 646 (1939).
The trustee cites Barnes v. Dow, 59 Vt. 530, 10 A. 258 (1887), for the proposition that
a gift of support for life must be deemed a spendthrift trust. In fact, in Barnes, the terms of
the will gave the testator's sister “support during her natural lifetime out of my estate.” Id., at
541, 10 A. at 261. This Court construed the will as establishing a trust for support and held
that an interest arising under such a trust is inalienable. Id. The mere fact that an interest in a
trust is not transferable does not make the trust a spendthrift trust. See Restatement (Second)
of Trusts § 154 comment b. In any event, Barnes is inapplicable here because a support trust
is not at issue.
Although the issue as to whether a material purpose of the trust remains cannot be
answered through resort to the foregoing formal categories traditionally imposed upon trust
instruments, we hold that termination cannot be compelled here because a material purpose
of the settlor remains unaccomplished. In the interpretation of trusts, the intent of the
settlor, as revealed by the language of the instrument, is determinative. In re Jones, 138 Vt.
223, 228, 415 A.2d 202, 205 (1980) citing v Destitute of Bennington County. v. Putnam Memorial
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Hospital, 125 Vt. 289, 293, 215 A.2d 134, 137 (1965).
We find that the trust instrument at hand has two purposes. First, the trust provides
for the education of the children of Woolson and Rosemary Brown. The Washington
Superior Court found that Rosemary Brown was incapable of having more children and that
the chance of Woolson Brown fathering more children was remote; on this basis, the court
concluded that the educational purpose of the trust had been achieved.
The settlor also intended a second purpose, however: the assurance of a life-long
income for the beneficiaries through the management and discretion of the trustee. We
recognize that, had the trust merely provided for successive beneficiaries, no inference could
be drawn that the settlor intended to deprive the beneficiaries of the right to manage the
trust property during the period of the trust. Estate of Weeks, 485 Pa. 329, 332, 402 A.2d 657,
658 (1979), (quoting Restatement (Second) of Trusts § 337 comment f). Here, however, the
language of the instrument does more than create successive gifts. The settlor provided that
the trustee must provide for the “care, maintenance and welfare” of the lifetime beneficiaries
“so that they may live in the style and manner to which they are accustomed, for and during the
remainder of their natural lives.” (Emphasis added.) The trustee must use all of the income and
such part of the principal as is necessary for this purpose. We believe that the settlor's
intention to assure a life-long income to Woolson and Rosemary Brown would be defeated
if termination of the trust were allowed. See 4 Scott, Scott on Trusts § 337.1, at 2261-64; see
also Will of Hamburger, 185 Wis. 270, 282, 201 N.W. 267, 271 (1924) (court refused to
terminate trust since testator desired it to continue during life of his wife).
Because of our holding regarding the second and continuing material purpose of the
trust, we do not reach the question of whether the trial court erred in holding that the
educational purpose of the trust has been accomplished.
Reversed; judgment for petitioners vacated and judgment for appellant entered.

6.3

Deviation and Changed Circumstances
The doctrine of deviation allows a court to modify or terminate a trust by court

order if the trust is no longer necessary because the purposes of the trust have been fulfilled,
have become illegal, or are impossible to fulfill. Additionally, the court may permit the
trustee to deviate from the testator’s instructions as contained in the trust if the court is
convinced that the testator would have agreed to the change had he or she foreseen the
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current situation. There are two main types of deviation-administrative and equitable.
Administrative deviation lets the trustee deviate from the administrative directions in the
trust instrument because of changed in circumstances if compliance with those directions
would defeat or substantially impair the accomplishment of the purposes of the trust. This
doctrine applies to actions like when and how to invest trust property. Under the doctrine of
equitable deviation, trustees are permitted to deviate from the distributive terms of the trust
because of change in circumstances. Thus, the trustee may modify the time and manner he
distributes the trust property.

In re Trust of Riddle, 157 P.3d 888
PENOYAR, J.
¶ 1 The Trustee of a consolidated trust, Ralph A. Riddell, appeals the trial court's
denial of his motion to modify the trust and create a special needs trust on behalf of a trust
beneficiary, his daughter, Nancy I. Dexter, who suffers from schizophrenia affective disorder
and bipolar disorder. Ralph's deceased father and mother each established a trust. The trusts
were consolidated by the court. Upon Ralph's death, the trust will terminate and Nancy will
receive payment of her portion of the trust proceeds. Ralph argues that the trial court has
the power to modify the trust; that his daughter's disabilities are a changed and unanticipated
condition; and that the purpose of the settlor will be preserved through the modification. We
agree and remand to the trial court to reconsider an equitable deviation in light of changed
circumstances and the settlors' intent that the beneficiaries receive both medical care and
general support from the trust's funds.
FACTS
¶ 2 George X. Riddell and Irene A. Riddell were husband and wife with one child,
Ralph. George's Last Will and Testament left the residue of his estate in trust for the benefit
of his wife, his son, his daughter-in-law, and his grandchildren. George also created an
additional trust (the Life Insurance Trust) for their benefit. Irene's Last Will and Testament
left the residue of her estate in trust for the benefit of her son; her son's wife, Beverly
Riddell; and her grandchildren.
¶ 3 The trusts contained a provision in which, upon the death of Ralph and Beverly,
George and Irene's grandchildren would receive the trust's benefits until the age of thirtyfive when the trusts would terminate and the trustee would distribute the principal to the
grandchildren. Ralph is currently the Trustee. George and Irene are both deceased.
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¶ 4 Ralph and Beverly have two children, Donald H. Riddell and Nancy. Both
Donald and Nancy are more than thirty-five years old. Donald is a practicing attorney and
able to handle his own financial affairs. Nancy suffers from schizophrenia affective disorder
and bipolar disorder; by 1991 she received extensive outpatient care; and by 1997 she moved
to Western State Hospital. She is not expected to live independently for the remainder of her
life.
¶ 5 Both Ralph and Beverly are still living. Upon their death, the trusts will terminate
because Nancy and Donald are both over the age of thirty-five; Nancy will receive her
portion of her grandparents' trust principal, which is approximately one half of $1,335,000.
¶ 6 The Trustee, Ralph, Ralph, filed a petition in superior court, asking the trial court
to consolidate the trusts and to modify the trust to create a “special needs” trust on Nancy's
behalf, instead of distributing the trust principal to her. Clerk's Papers (CP) at 4. He
explained that, under the current trust, when her parents die, Nancy's portion of the
principal will be distributed to her and the trust will terminate. He argued that a special needs
trust is necessary because, upon distribution, Nancy's trust funds would either be seized by
the State of Washington to pay her extraordinary medical bills or Nancy would manage the
funds poorly due to her mental illness and lack of judgment. He argued that the modification
would preserve and properly manage Nancy's funds for her benefit.
¶ 7 The trial court granted the motion to consolidate the trusts but denied the
motion to modify. It stated that it did not have the power to modify the trust unless
unanticipated events existed that were unknown to the trust creator that would result in
defeating the trust's purpose. The trial court found that the trust's purpose was “to provide
for the education, support, maintenance, and medical care of the beneficiaries” and that a
modification would only “permit[ ] the family to immunize itself financially from
reimbursing the State for costs of [Nancy's medical] care.” CP at 54, Report of Proceedings
(RP) at 4. Relying on the Restatement (Second) of Trusts, it stated that it would not allow a
modification “merely because a change would be more advantageous to the beneficiaries.”
CP at 53; Restatement (Second) of Trusts § 66(1) cmt. b (2001). It did not issue factual
findings or legal conclusions with its order but incorporated its reasoning from its oral ruling
into the order.
¶ 8 Ralph moved for reconsideration, arguing that the Trust and Dispute Resolution
Act, chapter 11.96A RCW (TEDRA) and the Restatement (Third) gave the trial court
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plenary power to handle all trusts and trust matters and the authority to modify the
consolidated trust into a special needs trust. Ralph argued that, because the grandparents
directed the trust proceeds to be distributed to their grandchildren when they reach the age
of thirty-five, the settlors intended that their grandchildren attain a level of responsibility,
stability, and maturity to handle the funds before receiving the distribution. He also argued
that due to Nancy's mental illness, allowing a distribution to her would defeat the settlors'
intent and the trust's purpose.
¶ 9 The trial court denied the motion for reconsideration. It again issued no factual
findings or legal conclusions, but it stated that its decision was based on the findings and
conclusions articulated in its oral ruling on the motion for reconsideration. On
reconsideration, the trial court agreed that the Restatement (Third) of Trusts-allowed the
court to modify an administrative or distributive protection of a trust if, because of
circumstances the settlor did not anticipate, the modification or deviation would further the
trust's purpose. It then stated:
I believe that there is a showing here that there is a circumstance that was,
perhaps, not anticipated by the original settler [sic]; however, the purpose of the
trust is to provide for the general support and medical needs of the beneficiaries.
I think that modifying the trust in a fashion that makes some of those assets less
available for that purpose than they would be under the express language of the
trust presently is not consistent with the purpose of the trust.
CP at 107. The trial court reasoned that because the trust was written to provide for
“medical care” and because creating a special needs trust would make some money
unavailable for medical care expenses, the modification was inconsistent with the trust's
purpose. CP at 101. Ralph now appeals.
ANALYSIS
I. STANDARD OF REVIEW
¶ 10 Ralph contends that the standard of review in this case is de novo. He is
partially correct. Whether equitable relief is appropriate, or whether the trial court should
have modified the trust, is a question of law, which we review de novo. Niemann v. Vaugh
Cmty. Church, 154 Wash.2d 365, 374, 113 P.3d 463 (2005)(citing Puget Sound Nat’l Bank of
Tacoma v. Easterday, 56 Wash. 2d 937, 943, 350 P.2d 444 (1960); Townsend v. Charles
Schalkenbach Home for Boys, Inc., 33 Wash.2d 255, 205 P.2d 345 (1949).
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¶ 11 But determining the parties' intent in regard to a trust is a factual question. We
review findings of fact under a substantial evidence standard, determining whether the
evidence was sufficient to persuade a rational fair-minded person the premise is true.
Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wash.2d 169, 176, 4 P.3d 123 (2000). If this
standard is satisfied, we will not substitute our judgment for that of the trial court even
though we may resolve a factual dispute differently. Croton Chem. Corp. v. Birkewald, Inc., 50
Wash.2d 684, 314 P.2d 622 (1957). Therefore, this case presents a mixed question of law and
fact. We give deference to the trial court's factual findings in regard to the trust, but we
review the trial court's decision to deny equitable relief and not modify the trust de novo.
Niemann, 154 Wash.2d at 375, 113 P.3d 463.
II. TRUST MODIFICATION
¶ 12 Ralph asserts that the trial court had the authority to modify the trust under
both the equitable deviation doctrine and under the plenary power granted by TEDRA.
TEDRA states that it is the Legislature's intent to give courts full and ample power to
administer and settle all trust matters. RCW 11.96A.02. On reconsideration, the trial court
agreed that it possessed the power to modify a trust. It stated that it could modify an
administrative or distributive protection of a trust if, because of circumstances the settlor
had not anticipated if the modification would further the trust's purpose. The trial court
understood that it possessed the ability to modify the trust.
¶ 13 Next, Ralph contends that the trial court erred in declining to modify the trust.
He explains that a modification would further the trust's purpose because, if George and
Irene had anticipated that Nancy would suffer debilitating mental illness requiring
extraordinary levels of medical costs and make her incapable of managing her money
independently, they would not have structured the trust to leave a substantial outright
distribution of the trust principal to her. He contends that the settlors instead would have
established a special needs trust to protect the funds because Nancy's medical bills would be
extraordinary and covered by state funding.
¶ 14 Ralph explains that the settlors conditioned the distribution of trust assets on
her being at least thirty-five years old, indicating that they intended that their grandchildren
have a level of maturity and stability before receiving the trust distribution. Ralph asserts that
given Nancy's medical conditions and inability to handle her finances independently, she will
never attain a level of maturity to handle the distribution of funds; therefore a special needs
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trust is appropriate.
¶ 15 Niemann is very instructive in this case. In Niemann, our Supreme Court held that
trial courts may use “equitable deviation” to make changes in the manner in which a trust is
carried out. Niemann, 154 Wash.2d at 378, 113 P.3d 463. The court outlined the two prong
approach of “equitable deviation” used to determine if modification is appropriate. Niemann,
154 Wash.2d at 378, 113 P.3d 463. The court “may modify an administrative or distributive
provision of a trust, or direct or permit the trustee to deviate from an administrative or
distributive provision, if [ (1) ] because of circumstances not anticipated by the settlor [ (2) ]
the modification or deviation will further the purposes of the trust.” (Niemann, 154 Wash.2d
at 381, 113 P.3d 463. Restatement (Third) of Trusts § 66(1) (2001).) In Niemann, the court
adopted the Restatement (Third) of Trusts and noted that the Restatement (Third) requires a
lower threshold finding than the older Restatement and gives courts broader discretion in
permitting deviation of a trust. Niemann, 154 Wash.2d at 381, 113 P.3d 463.
¶ 16 The first prong of the equitable deviation test is satisfied if circumstances have
changed since the trust's creation or if the settlor was unaware of circumstances when the
trust was established. Restatement (Third) of Trusts § 66 cmt. a (2001). Upon a finding of
unanticipated circumstances, the trial court must determine if a modification would tend to
advance the trust purposes; this inquiry is likely to involve a subjective process of attempting
to infer the relevant purpose of a trust from the general tenor of its provisions. Restatement
(Third) of Trusts § 66 (cmt. b (2001).
¶ 17 The reason to modify is to give effect to the settlor's intent had the circumstances
in question been anticipated. Restatement (Third) of Trusts § 66 cmt. a (2001). Courts will
not ordinarily deviate from the provisions outlined by the trust creator but they undoubtedly
have the power to do so, if it is reasonably necessary to effectuate the trust's primary purpose.
Niemann, 154 Wash.2d at 382, 113 P.3d 463. A trust settlor may possess a myriad of
intentions in settling a trust, but the trial court must concern itself with their primary
objective. Niemann, 154 Wash.2d at 382, 113 P.3d 463.
¶ 18 As stated above, we defer to the trial court's factual findings. Niemann, 154
Wash.2d at 375, 113 P.3d 463. In this case, the trial court did not issue formal factual
findings, but it stated in the oral ruling that there was a showing of a changed circumstance
in this case. This meets the first prong. The settlor's intent is also a factual question. Niemann,
154 Wash.2d at 374-75, 113 P.3d 463. The trial court found in its oral ruling that the “stated”
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purpose of the trust is to provide for the beneficiaries' education, support, maintenance, and
medical care. CP at 54. Thus, it found that this trust's primary purpose was to provide for
Nancy during her lifetime. Because the trust was to terminate at age thirty-five, it was also
the settlors' intent that Nancy have the money to dispose of as she saw fit, which would
include any estate planning that she might choose to do.
¶ 19 There is no question that changed circumstances have intervened to frustrate
the settlors' intent. Nancy's grandparents intended that she have the funds to use as she saw
fit. Not only is Nancy unable to manage the funds or to pass them to her son, but there is a
great likelihood that the funds will be lost to the State for her medical care. It is clear that the
settlors would have wanted a different result.
¶ 20 In 1993, as part of the Omnibus Budget Reconciliation Act, Congress set forth
a requirement for creating special needs trusts (or supplemental trusts), intended to care for
the needs of persons with disabilities and preserve government benefits eligibility while
allowing families to provide for the supplemental needs of a disabled person that
government assistance does not provide. Marla B. Karus, Special Issue: Special Needs Children in
the Family Court, 43 FAM. CT. REV. 607, 610 (Oct.2005) (emphasis removed). The Act
exempted certain assets from those assets and resources counted for the purposes of
determining an individual's eligibility for government assistance. Pub.L. 103-06, § 13611(b),
codified at 42 U.S.C. § 1396p(d)(4)(A). A supplemental needs trust is a trust that is established
for the disabled person's benefit and that is intended to supplement public benefits without
increasing countable assets and resources so as to disqualify the individual from public
benefits. See Jill S. Gilbert, USING Trusts in Planning for Disabled Beneficiaries, Wisconsin
Lawyer (Feb.1997); Sullivan v. County of Suffolk, 174 F.3d 282, 284 (2nd cir. 1999).
¶ 21 In this case, the trial court was concerned with fashioning a trust for Nancy that
would allow the family to shield itself for “reimbursing the State” for the costs of her
medical care due to her disability. RP at 4. But in 1993, Congress permitted the creation of
special needs trusts in order to allow disabled persons to continue to receive governmental
assistance for their medical care. Marla B. Karus, Special Issue: Special Needs Children in the
Family Court, 43 Fam. Ct. Rev. 607, 610 (Oct. 2005); Pub. L. 103-66, § 13611(b), codified at
42 U.S.C. § 1396p(d)(4)(A). Special needs trusts were created in order to allow disabled
persons to continue receiving governmental assistance for their medical care, while allowing
extra funds for assistance the government did not provide. Given this legal backdrop, the
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trial court should not have considered any loss to the State in determining whether an
equitable deviation is allowed. The law invites, rather than discourages, the creation of
special needs trusts in just this sort of situation. The proper focus is on the settlors' intent,
the changed circumstances, and what is equitable for these beneficiaries.
¶ 22 George and Irene both died without creating a special needs trust but did not
know of Nancy's mental health issues or how they might best be addressed. They clearly
intended to establish a trust to provide for their grandchildren's general support, not solely
for extraordinary and unanticipated medical bills.
¶ 23 A special needs trust may be established by a third party or by the disabled
person that would be benefited by the trust. See Barbara A. Isenhour, Medicaid Eligibility for
Long-Term Care Coverage and Special Needs Trusts, Isenhour Bleck, P.L.L.C. (Feb. 2006). Trusts
established or funded by the disabled person are subject to 42 U.S.C. § 1396p(d)(4)(A),
which entitles the State to receive all remaining trust amounts upon trust termination for
medical assistance paid on behalf of the disabled beneficiary. See Clifton B. Kruse, Jr., Third
Party and Self-Created Trusts Planning for the Elderly and Disabled Client, ABA Publishing (3rd
Ed.). However, the State is not entitled to receive payback upon termination of a third party
special needs trust for medical assistance provided for the disabled beneficiary. See Barbara
D. Jackins, Special Needs Trusts A Guide for Trustees Administration Manual (2005 Ed.). Here, the
trust was established and funded by George and Irene Riddell for the beneficiary Nancy
Dexter. It is a third party special needs trust. The trust is not subject to State assistance
payback and is not required to have a payback provision.
¶ 24 We remand to the trial court to reconsider this matter and to order such
equitable deviation as is consistent with the settlors' intent in light of changed circumstances.
Class Discussion Tool
Juanita created a trust for the benefit of her two children, Wayne and Connie. The
terms of the trust were as follows: “I leave my entire estate in trust for my two children,
Wayne and Connie. The purpose of the trust is to provide Wayne and Connie with a college
education and to provide support for them for life. After Wayne and Connie die, the
proceeds of the trust are to be paid to my grandchildren, who are then living.” In 2005, after
Juanita died, Corporate Trust assumed its role as trustee. At that time, Wayne was a
freshman in college. Connie had graduated from college with a degree in nursing. Connie
had two children, April and Robin. In 2007, Wayne was hit by a drunk driver while riding
193

his bicycle. As a consequence, Wayne suffered permanent brain damage. Connie was so
angry that she shot and killed the drunk driver. Consequently, Connie was given life in
prison. In 2011, Robin was diagnosed with kidney disease. Robin needs $100,000 to get her
name place on the transplant list. Connie would like to have the trust modified to create a
special needs trust for Wayne and to get the $100,000 that Connie’s needs for treatment.
What result?

6.4

Removal of the Trustee
Another way to modify the trust is to have the trustee replaced. Courts are reluctant

to substitute their judgment for the testator’s judgment with regards to the trustee. This is
especially true where the trustee is an individual that has been specifically chosen by the
testator. Thus, courts will not remove a trustee unless it is for unfitness or other good cause.

In re the Matter of Trust Established by Baird, 204 P.3d 703
Justice JIM RICE delivered the Opinion of the Court.
¶ 1 Donald Baird, the beneficiary of a trust established by his parents, petitioned the
Ninth Judicial District Court, Teton County, to remove N. Kay Goulet as trustee on the
grounds that she breached her fiduciary duties. Baird appeals the District Court's denial of
his petition. We affirm.
¶ 2 The issue presented is whether the District Court abused its discretion by
denying the beneficiary's petition to remove the Trustee of the Trust.
FACTUAL AND PROCEDURAL BACKGROUND
¶ 3 On October 30, 1981, Allan and Catherine Baird (Trustors) signed a Trust
Agreement establishing a trust for their son, Donald Baird (Baird). The Trust Agreement
named Kay Goulet (then Kay Hagen), as trustee. The corpus of the trust consisted of real
property, including a home, in Choteau, Montana, and mineral interests in Blaine County,
Montana. The purpose of the Trust is to benefit and provide a home for Baird, and the
remainder beneficiaries of the Trust are Goulet and Zina Druesdow, the designated
successor trustee. The Trust Agreement also indicated that certain real property in Great
Falls was to be a part of the trust, but the property was never transferred into the Trust. It
was sold in 1989.
¶ 4 Donald Baird is one of the Trustors' biological children, and Goulet was raised
by them as a foster child. Donald Baird was hit by a train and suffered severe injuries in
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1970. His mother, Catherine Baird, lived with him in the house on the trust property in
Choteau until her death in January 2005.
¶ 5 In October 2005, Goulet petitioned the District Court seeking modification of
the Trust Agreement to allow her to sell the Trust property and invest the proceeds. She
asserted that the Trust property in Choteau was dilapidated and dangerous, and that the
Trust did not have the resources to maintain the house. Baird opposed the petition and
counter-petitioned the court to remove Goulet as Trustee and replace her with Druesdow,
the successor trustee. The District Court, Judge Buyske presiding, conducted a hearing on
Goulet's modification petition and issued an order denying the petition in February 2006.
The court ruled that the Trust property was not in such a condition that it needed to be sold
to preserve the corpus of the Trust or accomplish the purposes of the Trust.
¶ 6 In October 2007, the District Court, Judge McKinnon presiding, conducted a
hearing on Baird's counter-petition to remove the Trustee, and thereafter issued an order
denying the petition. Additional facts will be discussed herein.
STANDARD OF REVIEW
¶ 7 “We review a district court's findings of fact to determine whether they are
clearly erroneous. We review a district court's conclusions of law to determine whether that
court's interpretation of the law is correct.” In re Estate of Berthot, 2002 MT 277, ¶21, 312
Mont. 366, 59 P.3d 1080 citations omitted). As discussed below, we review a district court's
denial of a petition to remove a trustee under an abuse of discretion standard.
DISCUSSION
¶ 8 Did the District Court abuse its discretion by denying the beneficiary's
petition to remove the Trustee of the Trust?
¶ 9 Baird argues that the District Court should have removed Goulet as trustee for
breaching fiduciary duties because she (1) failed to provide Baird with an annual accounting,
(2) did not pay the property tax and insurance premiums on the property and blocked Baird
from paying the taxes, and (3) did not preserve the trust property and make it productive.
The parties argue over what grounds require removal of a trustee and whether a district
court has any discretion in removing a trustee. Baird asserts that any breach of the Trust
requires removal and that the District Court did not have the authority or discretion to
determine otherwise. Goulet argues that not every breach of the Trust requires removal and
the District Court had discretion to determine whether removal of the Trustee is
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appropriate.
¶ 10 Section 72-33-618, MCA, states in part:
(1) A trustee may be removed in accordance with the trust instrument or by the
court on its own motion or on petition of a cotrustee or beneficiary.
(2) The grounds for removal of a trustee by the court include the following:
(a) if the trustee has committed a breach of the trust;
(b) if the trustee is insolvent or otherwise unfit to administer the
trust;
(c) if hostility or lack of cooperation among cotrustees impairs the
administration of the trust;
(d) if the trustee fails or declines to act; or
(e) for other good cause.
¶ 11 The official comments to § 72-33-618, MCA, explain that this statute is based
upon the Restatement (Second) of Trusts § 107 (1959), the California Probate Code, and the
Texas Trust Code. The comments in the Restatement (Second) of Trusts explain that a court
“may remove a trustee if his continuing to act as trustee would be detrimental to the
interests of the beneficiary. The matter is one for the exercise of reasonable discretion by the
court.” Restatement (Second) of Trusts § 107 cmt. a; see also Restatement (Second) of Trusts § 37 cmt.
d (2003) (“The matter is largely left to the discretion of the trial court, but is subject to
review for abuse of discretion.”) We agree with these comments and will apply an abuse of
discretion standard of review to examine a district court's denial of a request to remove a
trustee, in addition to reviewing findings of fact and conclusions of law under the usual
standards of review stated earlier herein.
¶ 12 Concerning the grounds for removal of a trustee, the official comments to §7233-618, MCA, refer to comment b of the Restatement (Second) of Trusts, which provides that
“the commission of a serious breach of trust” constitutes grounds for removal of a trustee.
Restatement (Second) of Trusts § 107 cmt. b. As suggested by the Restatement (Second) of Trusts § 37
cmt. e, this can include the “repeated or flagrant failure or delay in providing proper
information or accountings to beneficiaries.” However, “[n]ot every breach of trust warrants
removal of the trustee ... but serious or repeated misconduct, even unconnected with the
trust itself, may justify removal.” Restatement (Second) of Trusts § 37 cmt. e. Consistent with our
recognition that a district court possesses discretion in determining whether or not to
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remove a trustee, we also conclude that not every breach of the trust requires removal of the
trustee as a matter of law, but is subject to the trial court's discretionary review. Upon these
principles, we turn to Baird's challenges.
¶ 13 Baird challenges Goulet's failure to provide annual accountings. Both the Trust
Agreement and statutory law require annual accountings. The Trust Agreement states that
the “Trustee shall keep books of accounts and shall render an annual accounting of the
Trust to the Beneficiary.” Section 72-34-126, MCA, states that “[e]xcept as provided in 72–
34–127, the trustee shall annually mail each income beneficiary an itemized statement of all
current receipts and disbursements of both principal and income.” None of the exceptions
of §72-34-127, MCA, apply to this case.
¶ 14 The District Court found that Goulet had never provided an annual accounting
to Baird, but accepted Goulet's argument, likewise made on appeal, that because the trust
had no income or disbursements, there was “ nothing to account for.” In concluding that
good cause did not exist for Goulet's removal, the District Court reasoned that “[w]hile an
annual accounting is required, there has been nothing in the trust except for the property for
which to provide and [sic] accounting. The oil and gas leases are not income producing at
this time.”
¶ 15 Other states have reached similar conclusions. The Supreme Court of Iowa held
that failure to provide annual accountings does not always require removal of the trustee.
Schildberg v. Schildberg, 461 N.W.2d 186 (Iowa 1990). In Schildberg the court recognized that the
trustee breached the trust by failing to provide annual reports. Schildberg v. Schildberg, 461
N.W.2d at 191. Nonetheless, the court stated that “[t]here is no evidence to indicate that the
omission to report resulted from a motive on the part of Dennis to take advantage of the
beneficiaries. Nor do we find evidence to suggest that the effectiveness of the trust has been
impaired, despite this technical violation, or that the intent of the settlor has been thwarted.”
Schildberg v. Schildberg, 461 N.W.2d.
¶ 16 Similarly, the Supreme Court of Minnesota has upheld the denial of a petition to
remove a trustee where the trustee failed to provide annual accountings. Matter of Gershow’s
Will, 261 N.W.2d 335, 340 (Minn. 1977) ( “While these important and necessary statutory
provisions requiring annual accounting were violated, the trial court did not abuse its
discretion in failing to remove the trustee for inconsequential deviations from legal
requirements in the past.”).
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¶ 17 On this record, we conclude that the District Court did not abuse its discretion
in determining not to remove Goulet as trustee for failure to file annual accountings.
Nonetheless, it should be emphasized that failing to file an annual accounting is a violation
of the statute and the Trust Agreement. As a matter of course, annual accountings must be
completed by the Trustee. The parties' briefing disputes whether the Great Falls property
referenced above was part of the trust corpus, and whether its 1989 sale should have been
part of an accounting. Although the District Court did not find this property to be part of
the trust, an annual accounting would have identified this issue long ago, and perhaps
resolved the matter between the parties, instead of allowing it to linger for many years.
Further, the beneficiary is entitled to know whether there has been any activity with regard
to the trust's mineral interests. Thus, we agree with the conclusion reached by the Gershow
court: “[w]hile there are some deviations from the required statutory requirements in the
preparation of these accounts, we are satisfied that, if they are corrected in the future, the
rights of all parties can be adequately protected.” Matter of Gershow’s Will, 261 N.W.2d at 340
(quotation omitted). In the future, the Trustee is to file annual accountings for the Trust.
This will serve to protect the rights of the parties.
¶ 18 Baird also claimed in the District Court that Goulet should be removed as
Trustee because she failed to pay insurance premiums and certain taxes in a timely manner.
On appeal, Baird does not dispute the District Court's conclusion that Goulet was not
obligated to use her personal funds to pay the taxes and insurance premiums, but challenges
Goulet's interference with his attempts to pay the taxes himself.
¶ 19 The record shows that between the first and second hearings in this case the
parties disagreed as to whom the county should send the tax statements. At the hearing,
Goulet testified that as Trustee she should receive the tax statements but has no problem
with letting Baird pay the taxes. After the hearing, the District Court entered an order
allowing Baird to pay taxes on the property. Thus, the issue of whether Baird may pay the
taxes is settled, and neither party challenges it. Goulet's interference with Baird's efforts to
pay taxes was temporary, apparently done in good faith, and does not require a conclusion
that the District Court's resolution was an abuse of discretion.
¶ 20 Baird raises several other issues that do not merit a detailed discussion. Baird
challenges several factual findings, but he has not established that they were clearly
erroneous. Also, Baird asserts that the District Court should have removed Goulet for
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failure to preserve the trust property and make it productive by being unaware of mineral
interests in the trust. However, Baird has not factually demonstrated an error by Goulet
necessitating her removal.
¶ 21 We conclude that the District Court, after considering all of Baird's claims, did
not abuse its discretion by denying his request to remove Goulet as Trustee.
¶ 22 Affirmed.
Notes, Questions and Problems
1. The court will not remove a trustee simply because he has a dispute with the beneficiary
of the trustee. Moreover, the trustee usually will not remove a trustee because he is a bad
actor unless his behavior negatively impacts the beneficiary.
2. When a beneficiary sues the trustee claiming a breach of trust, the trustee’s attorney fees
are paid out of the trust funds. If there is bad blood between a beneficiary and a trustee, the
beneficiary might constantly challenge the trustee’s actions. In that case, most of the trust
funds could end up in the hands of attorneys. Would it make sense to permit the court to
remove a trustee for having irreconcilable differences with the beneficiary?
3. Problems
If which of the following cases might the court remove the trustee?
a). Jackson, a former slave, established a trust for the benefit of his children. After Jackson
died, Main Bank assumed its role as trustee. A few years later, Main Bank was acquired by
New Bank. Jackson’s children found out that New Bank is suspected of financing the
genocide in Dafur,
b). Albert established a trust for the benefit of his grandchildren. After Albert died Zelda
assumed her role as trustee. A few years later, Zelda started having financial problems and
had to file bankruptcy.
c) Yolanda established a discretionary support trust for the benefit of her sisters, Kelly and
Tiffany. After Yolanda died, Peyton assumed his role as trustee. A few years later, Peyton
started having an affair with Kelly.
d) Velma established a trust for the benefit of her nieces and nephew. After Velma died, Otis
assumed his role as trustee. A few years later, Otis became a tax protester and refused to pay
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his state and federal taxes.

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Chapter 7 - Creation and
Modification of Charitable Trusts
In order to create a charitable trust the testator must satisfy all of the requirements to
create a private trust (intent, beneficiaries, res and writing) and intend for the trust to be used
for a charitable purpose. Courts have more flexibility when it comes to modifying the terms
of a charitable trust. In some cases, courts can even repurpose the funds in the trust.

7.1

Creation of the Charitable Trust
To qualify as a charitable trust, the trust must have a valid charitable purpose that

benefits an indefinite class of persons. Charitable purposes include: (1) the relief of poverty;
(2) the advancement of education; (3) the advancement of religion; (4) the promotion of
health; (5) government or municipal purposes; and (6) other purposes the accomplishment
of which is beneficial to the community.
Problems
Which of the following trusts have a charitable purpose?
a). A trust to establish a museum to display the love letters the settlor wrote to his wife.
b). A trust to conduct stem cell research.
c). A trust to provide gym memberships to residents that are at least fifty pounds overweight.
d). A trust to plant a community garden.
e) A trust to build a house for the minister of a church.
f) A trust to send the members of a church choir on an annual vacation.
g) A trust to pay the salary of a law professor.
h) A trust to send Tina to college if she promises to teach in the testator’s hometown.

Marsh v. The Frost National Bank, 129 S.W.2d 174
Opinion by Justice Rodriguez.
This is a declaratory judgment action. Appellants, Anna Spohn Welch Marsh, Noel
Marsh, and Holly McKee, appeal from a probate order that modified a provision in the will
of Charles Vartan Walker, deceased. Appellants raise four issues on appeal: (1) whether the
trial court properly applied the cy pres doctrine to reform a will provision and (2) whether the
trial court correctly ruled that tract 3 with its associated income, rather than the proceeds of
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the sale of that land, should be conveyed to the charitable beneficiary based on the cy pres
reformation; We reverse and remand.
I. Factual Background
Charles Walker died on March 13, 2000, leaving a holographic will. The will named
appellee, Frost National Bank (Frost Bank), as independent executor. On July 11, 2000,
Frost Bank filed an original petition for declaratory judgment for clarification of several
probate matters including the construction of Article V of the Charles Walker will, the
provision at issue in this appeal. Article V reads in relevant part:
I hereby direct my Executor to sell tract 3 of the V.M. Donigan 456.80
Partition for cash and to invest the proceeds in safe and secure tax-free U.S.
government bonds or insured tax-free municipal bonds. This trust is to be
called the James Madison Fund to honor our fourth President, the Father of
the Constitution. The ultimate purpose of this fund is to provide a million
dollar trust fund for every American 18 years or older. At 6% compound
interest and a starting figure of $1,000,000.00, it would take approximately 346
years to provide enough money to do this. My executor will head the Board of
Trustees.... When the Fund reaches $15,000,000 my Executor's function will
cease, and the money will be turned over to the Sec. of the Treasury for
management by the federal government. The President of the U.S., the Vice
President of the U.S., and the Speaker of the U.S. House of Representatives
shall be permanent Trustees of the Fund. The Congress of the United States
shall make the final rules and regulations as to how the money will be
distributed. No one shall be denied their share because of race, religion, marital
status, sexual preference, or the amount of their wealth or lack thereof....
Appellants filed an answer to the petition for declaratory judgment alleging that
Article V of the will is void under the rule against perpetuities. Appellee, John Cornyn, Texas
Attorney General, intervened in this action pursuant to section 123.002 of the Texas
Property Code alleging that a general charitable intent could be found and that Article V of
the will created a charitable trust. See Tex. Prop. Code Ann. § 123.002 (Vernon 1995). The
Attorney General then moved for the application of the cy pres doctrine to Article V. After a
hearing on this issue, the trial court found in relevant part that: (1) the will evidenced a
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general charitable intent; (2) Article V of the will established a valid charitable trust not
subject to the rule against perpetuities; (3) the Attorney General's request to have the court
exercise its cy pres powers should be granted; and (4) attorney's fees should be awarded to the
Attorney General. The order was signed with the modification of the trust and charitable
beneficiary to be determined after a second hearing. The second hearing was held before a
different judge. After reconsidering the previous order, the second judge confirmed and
ratified that order and signed a final judgment establishing the modifications of Article V.
This appeal ensued.
II. Interpretation of Article V
In their first issue, appellants argue that Article V does not show a charitable intent
and therefore is not subject to reformation under the cy pres doctrine. Furthermore,
appellants argue that because Article V violates the rule against perpetuities and cannot be
legally reformed, it is void, and the proceeds of the land that would fund the trust should
pass through intestate succession.
In Texas, under the rule against perpetuities, an interest is not good unless it must
vest, if at all, not later than twenty-one years after some life in being at the time of the
creation of the interest, plus a period of gestation. Id. § 112.036; see Foshee v. Republic Nat’l
Bank, 617 S.W.2d 675, 677 (Tex. 1981). Both perpetual trusts and trusts for an indefinite
duration violate the rule against perpetuities and are void. Atkinson v. Kettler, 372 S.W.2d 704,
711 (Tex. Civ. App.-Dallas 1963), aff'd, 383 S.W.2d 557 (Tex. 1964). The rule against
perpetuities does not, however, apply to charitable trusts. See Tex. Prop. Code Ann. . §
112.036 (Vernon 1995); Foshee, 617 S.W.2d at 677. Therefore, we must first address whether
Article V of the will establishes a trust for a charitable purpose.
Whether or not a given purpose is “charitable” is a question of law for the court to
decide. Frost Nat’l Bank v. Boyd., 188 S.W.2d 199, 206 (Tex. Civ. App.-San Antonio 1945),
aff'd, 145 Tex. 206, 196 S.W.2d 497 (1946). When an issue turns on a pure question of law,
we apply a de novo standard of review, Tenet Health Ltd. V. Zamora, 13 S.W.3d 464, 468
(Tex. App.-Corpus Christi 2000, pet. dism’d w.o.i. (citing State v. Heal, 917 S.W.2d 6,9 (Tex.
1996), and we are not obligated to give any deference to legal conclusions reached by the
trial court Id. at 468-69.

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Where the question of whether a given purpose is or is not charitable arises, the
words “charitable purpose” have a definite ascertainable meaning in law, and a judicial
determination may be made with satisfactory certainty in every case. See Boyd v. Frost Nat’l
Bank, 145 Tex. 206, 196 S.W.2d 497, 501-03 (1946). Legal concepts of what are “charitable
purposes” are categorized in section 368 of the Restatement Second of Trusts. Id. at 502,
Section 368 provides as follows:
Charitable purposes include (a) the relief of poverty; (b) the advancement of
education; (c) the advancement of religion; (d) the promotion of health; (e)
governmental or municipal purposes; (f) other purposes the accomplishment
of which is beneficial to the community.
Restatement (Second) of Trusts § 368 (1959); see Boyd., 196 S.W.2d at 502.
Article V of the will clearly states that the purpose of the fund is to provide a million
dollar trust fund for every American eighteen years or older with no one being denied his
share due to race, religion, marital status, sexual preference, or the amount of his wealth.
Thus, it is clear from the language of Article V that if the purpose is to be found charitable,
it must fall under the broad category (f) of section 368 of the Restatement; other purposes
the accomplishment of which is beneficial to the community. Restatement (Second) of
Trusts § 368 (1959). To be included in category (f), the purpose set out in Article V must go
beyond merely providing financial enrichment to the individual members of the community;
the purpose must promote the social interest of the community as a whole. See Restatement
(Second) of Trusts § 374 cmt. a, f (1959). The Restatement provides this Court with the
following illustration applicable to the facts of this case:
[I]f a large sum of money is given in trust to apply the income each year in
paying a certain sum to every inhabitant of a city, whether rich or poor, the
trust is not charitable, since although each inhabitant may receive a benefit,
the social interest of the community as such is not thereby promoted.
Id. § 374 cmt. f. Furthermore, trusts created to distribute money out of liberality or
generosity, without regard to the need of the donees and the effect of the gifts, do not have
the requisite public benefit necessary to a charity. See G. Bogart, The Law of Trusts and
Trustees § 379 (1991). With these concepts in mind, we analyze Article V.
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Charles Walker expressly states in Article V that “[t]he ultimate purpose of this fund
is to provide a million dollar trust fund for every American 18 years or older.” From this
language, it is obvious Walker intended nothing more than to financially enrich the American
public. While this act is generous and benevolent, it is not necessarily beneficial to the
community. There is no evidence referenced or argument made by appellees to persuade us
that the effect of the trust contemplated by Walker would promote the social interest of the
community. See Restatement (Second) of Trusts § 374 cmt. a (1959). Article V does not place
restrictions or limitations on the beneficiaries of the trust, which would allow them to use
the funds for any purpose, whether it be one that benefits the community or one that
burdens it. The trust would provide a personal, individual benefit to each beneficiary but
would fail to promote the social interest of the community as a whole. See id. § 374 cmt. a, f.
Furthermore, the trust is established without regard to the need of the beneficiaries or the
effect of the trust and as a result lacks the requisite public benefit necessary to a charity. See
G. Bogart, The Law of Trusts and Trustees § 379 (1991). The trust created by Walker is
nothing more than a generous distribution of money with no contemplation or recognition
of public benefit. We conclude the trust established by Walker is devoid of any charitable
intent or purpose and is therefore not charitable as defined by law.
Appellees argue that Texas courts have a long history of favoring charitable bequests
and use liberal rules of construction to fulfill the intent of the testator. They also urge that
where a bequest is open to two constructions, the interpretation that gives the charity effect
should be adopted, and that which will defeat the charity should be rejected. In support of
their arguments, appellees cite Boyd; Blocker v. State, 718 S.W.2d 409 (Tex. App.-Houston [1st
Dist.] 1986, write ref’d. n.r.e.); Taysum v. El Paso Nat’l Bank, 256 S.W.2d 172 (Tex. Civ. App.El Paso 1952, writ ref’d; and Eldridge v. Marshall Nat’l Bank, 527 S.W.2d 222 (Tex. Civ. App.Houston [14th Dist.] 1975, writ. ref’d n.r.e.). We agree with appellees' contentions and the
cases cited in support thereof. However, we find these cases distinguishable and the specific
propositions stated inapplicable. In the cases cited, the courts, after finding an existing
charitable intent as defined by law, used liberal rules of construction to sustain the charitable
trust. In this case, however, we find no charitable intent or purpose. Therefore, these rules of
law do not apply. Appellees would have us use these rules to create a charitable intent where
none exists. We decline to do so.
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Having concluded Article V of the will does not establish a charitable trust, the rule
against perpetuities is applicable. In this case, the trust is of indefinite duration and therefore
violates the rule against perpetuities. See Atkinson, 372 S.W.2d at 711. Accordingly, appellants'
first issue is sustained.
III. Reformation of Noncharitable Trusts
When a noncharitable trust is in violation of the rule against perpetuities, a trial court
is authorized to reform the trust pursuant to section 5.043 of the Texas Property Code Tex.
Prob. Code Ann § 5.043(b) (Vernon Supp.2004). (Vernon Supp.2004). A court has the
power to reform or construe the trust according to the doctrine of cy pres by giving effect to
the general intent of the testator within the limits of the rule. Id., section 5.043 (b). It is clear
from the language in Article V that Walker's general intent in creating the trust was to
financially enrich the American public. Therefore, application of section 5.043 requires the
court to reform or construe Article V within the limits of the rule against perpetuities and
consistent with this intent. If reformation is not possible however, the trust is void as being
in violation of the rule.
Appellants contend in their second issue that the court erred in not selling tract 3 of
the V.M. Donigan 456.80 partition for cash as stated in Article V. Because of the disposition
of appellants' first issue, we need not address their second issue. However, as noted above,
reformation under section 5.043, if possible, provides for the court to give effect to the
general intent and specific directives of the creator. Tex. Prob. Code Ann § 5.043(b) (Vernon
Supp.2004). The selling of the land provided for under Article V would constitute a specific
directive and should be given effect in any reformation contemplated by the court.
Therefore, we remand this case to the trial court to consider the feasibility of
reformation of Article V under section 5.043.
IV. Conclusion
Accordingly, we reverse the trial court's judgment to the extent it established a
charitable trust and remand this case for further proceedings consistent with this opinion.
We also reverse the trial court's award of attorney's fees and remand this issue to the trial
court for further consideration.

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7.2

Modification/Cy Pres
If property is given in trust to be applied to a particular charitable purpose and it is

or becomes impossible, impracticable or illegal to carry out the particular purpose, and if the
testator manifested a more general intention to devote the property to charitable purposes,
the trust will not fail but the court will rely on the cy pres doctrine to direct the application
of the property to some charitable purpose which falls within the general intention of the
testator. The three main questions that must be resolved to determine if cy pres is
appropriate are the following: 1) Can the original charitable purpose be fulfilled?; 2) Did the
testator have a general charitable purpose in mind?; and 3) Will that purpose be carried out
by permitting the modification?

Petition of Pierce, 136 A.2d 510
DUBORD, Justice.
This case is before us upon petition of Lillian S. Sturgis, trustee under the will of
Joseph How, asking for a new construction of the will and for instructions concerning the
administering of the trust fund under the cy pres doctrine.
The administration of an estate is usually a prosaic procedure. However, the history
of this case, throughout the eighty-seven years which have elapsed since the death of Joseph
How, is most interesting and presents a set of facts, which one might expect to find in a
romantic novel, rather than in the true story of an estate, the assets of which, at the outset
and for more than forty years, were considered too small to be worth-while, and which have
now grown to a value too large to permit of the administration of the trust in accordance
with the seeming directions of the testator.
The testator, Joseph How, was a man of the sea. He was master of the bark known
as the Ellen Stevens. Records indicate that he was commissioned master in 1862 and his
name appears as captain of this bark in 1869. For the benefit of the uninitiated, a bark is
described in Webster's unabridged dictionary as a three-masted vessel having her foremast
and mainmast, square-rigged, and her mizzenmast fore-and-aft rigged. Joseph How was born
on July 22, 1820 and died on October 26, 1870. His home was in Portland and he is buried
there.
On October 25, 1870, just the day before his death, he executed his last will and
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testament.
Under the first paragraph of this will he bequeathed the possession and use of all his
personal property, including money, bonds, vessels, choses in action and furniture to his
wife, Alice W. How. By the second paragraph he bequeathed to his wife the income from all
of any real estate of which he may have been seized. Under the provisions of the third
paragraph he directed that his real estate as well as his interest in the bark, ‘Eben Stevens,’ be
sold and that the proceeds of said sale be invested and the income from said investment paid
to his wife, for and during her natural life.
At this point it may be well to point out, that the record copy of the will as we have
it, describes his ship as the ‘Eben Stevens.’ This may be a typographical error. The correct
name of the shop was the ‘Ellen Stevens' as indicated by records of the American Ship
Masters' Association. However, this discrepancy is of no moment at this particular time.
Under the provisions of the fourth paragraph of his will, he directed that at the
decease of his wife, his executor should pay the entire income to his mother, Eliza How, if
she should then be living, for and during her life, and in cash his mother should not be
living, then the income was to be paid to his brother, James L. How, for and during his
natural life.
The record in the case does not give us the information, but it is assumed that these
directions on the part of the testator were carried out.
The controversy now before us, arises under the fifth paragraph of the will which
reads as follows:
‘I request and direct that after the decease of my said wife, mother and brother,
my said estate, real and personal shall be appropriated to the founding of a home
for indigent seamen, and I authorize and empower my executor to invest the said
property and the income thereof and to use and employ the same in such
manner as will do the most good to the class of indigent seamen.’
The will was filed in the Probate Court within and for the County of Cumberland
and on the third Tuesday of November, 1870 duly allowed. The executor named in the will,
James P. Baxter, was appointed. He later resigned, and on June 15, 1875, Lewis Pierce was
appointed administrator de bonis non with the will annexed.
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The inventory shows that the entire value of the estate was only about $1,500. There
is nothing in the record to indicate how long the widow lived, nor when the mother or the
brother named in the will, as contingent beneficiaries, died. All we know is that the matter
remained in abeyance until at the April Term, 1912 of the Supreme Judicial Court for
Cumberland County, a bill in equity was filed by Lewis Pierce, the administrator, asking the
Court to construe the fifth paragraph of the will and to determine the ownership of the
assets in the estate. This bill was reported to the Law Court for determination upon bill and
answer.
It was contended by the heirs at law, that the attempted trust under consideration
had failed, both for indefiniteness and because the amount available was so small as to
render it impossible to carry out the provisions of the trust even if one were created.
In an opinion dated November 15, 1912, written by then Associate Justice Cornish,
later to become Chief Justice, this Court held that the bequest constituted a good public
charitable trust. The opinion provided that a trustee appointed to administer this trust was to
invest the residuum of the estate and employ the income for the benefit of indigent seamen.
It was stated that the trustee could do this directly, or he could turn over the income to some
worthy society or association organized for that purpose. The manner in which the money
was to be expended was left to the sitting Justice who was to determine to whom the income
should be paid and through what channel this kindly gift could be made most effective. This
case is reported in 109 Me. 509, 84A. 1070.
Although the mandate of the Law Court directed that a decree should be entered in
accordance with its opinion, no such decree was written and again the matter remained in
abeyance for a long period of years. Eventually this case was dismissed from the docket. For
twenty-five years the estate was apparently forgotten, probably because the available amount
was too small to really be worth-while.
Now we come to a very interesting part of the story. It appears that a short time
before his death, Captain How had invested the reported amount of $3,000 in a new
corporation, which was then being organized by a friend of his in Chicago. Subsequent
developments indicate that the captain probably did not place must value upon this
investment, and if the certificate representing his stock ownership in this corporation ever
came into the possession of the executor, administrator or trustee, they too probably felt
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there was little value attached to this item, as such poor care was given to the certificate that
it became lost, misplaced or destroyed. However, the corporation which was engaged in the
leather business prospered to an extent never dreamed of by its founder, and through a
series of stock dividends and accretions in value, the estate of Captain How now amounts to
more than $300,000, with more than $100,000 of income ready to be expended for the
purposes provided for in his will.
When the Court was apprised as to the situation, the case was restored to the docket
and a decree, pursuant to the opinion of the Law Court in the Pierce case, to be found in
109 Me. 509, 84 A. 1070, was entered nunc pro tunc on December 12, 1938, and this decree
holds that the bequest contained in the fifth paragraph of the last will and testament of
Joseph How is in its terms a good public charitable trust; that the purpose of this public
charitable trust is definite in its objects, is lawful and is to be regulated by the trustee of the
estate of Joseph How, who has been or may be appointed and qualified in the Probate Court
within and for the County of Cumberland. The trustee was ordered to invest the residuum
of the trust fund and employ the income thereof for the benefit of indigent seamen, doing
this directly or turning over the income to some worthy society or association organized for
that purpose, but before so doing, the trustee was ordered to apply to a Justice of the
Supreme Judicial Court for determination to whom and in what amounts the income should
be paid. On April 8, 1937, a trustee was appointed. He subsequently resigned, and on March
8, 1944, Lillian S. Sturgis, the petitioner herein was appointed as successor trustee.
On December 29, 1954, Lillian S. Sturgis filed a petition in the Supreme Judicial
Court in Equity in Cumberland County in the name of Lewis Pierce, Administrator, asking
the Court to determine to whom and in what amounts the income of the trust estate should
be paid.
On July 16, 1956, the sitting Justice of the Supreme Judicial Court in Equity
instructed the trustee to pay to the Portland Seamen's Friend Society the amount of $10,000,
to be used exclusively by it for assistance for the indigent, needy and destitute seamen, and
for no other purpose, this money to be expended under the supervision of the Attorney
General under the provisions of Section 4, Chapter 20, R.S.1954, which provides that the
Attorney General shall enforce due application of funds given or appropriated to public
charities within the state and to prevent breaches of trust in the administration thereof.
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On August 13, 1956, the trustee filed another petition in the Supreme Judicial Court
in Equity for a new construction of the will and for instructions concerning the
administering of the fund under the cy pres doctrine. It seems to have been assumed by all
parties that the beneficiaries of the trust were supposed to be seamen of the class to which
Captain How belonged. Based upon this assumption, in her petition, she alleged that after
paying the amount of $10,000 to the Portland Seamen's Friend Society, in accordance with
decree of Court, she still has income of over $100,000 in her possession, which she is unable
to expend for the benefit of indigent seamen, for the reason that there are not a sufficient
number of this class to allow for the expenditure of the money available, and she further
asked for instructions as to whether or not she may be permitted to expend the funds under
the cy pres doctrine for the benefit of seamen of other classes such as fishermen,
lobstermen, and others.
Various organizations claiming to have been organized for the purpose of rendering
assistance to indigent seamen, or who throughout the years have been rendering such
assistance, filed appearances and were heard by the sitting Justice at the time of the hearing.
The heirs-at-law of Captain How who comprise grandnephews, grandnieces, greatgrandnephews, and great-grandnieces also appeared.
The State of Maine because of the provisions of Section 4, Chapter 20, R.S.1954,
previously referred to, was represented by the Attorney General. The trustee, and those who
appeared, with the exception of the heirs-at-law, take the position that the fund now
available should be administered under the cy pres doctrine, and the class of beneficiaries
extended to include seamen of types other than that to which Captain How belonged.
The heirs-at-law argue, first that the trust has failed; second, that there was no
general charitable intent on the part of Captain How; and third, that the matter has been
judicially settled and is res judicata by reason of the decree of the Supreme Judicial Court in
Equity dated July 16, 1956, at which time the trustee was instructed to pay the sum of
$10,000 to the Portland Seamen's Friend Society. The heirs-at-law, therefore, contend that a
resulting trust has arisen in the entire fund for their benefit.
Before passing to a discussion of the cy pres doctrine, and its applicability to the
instant case, we can readily dispose of the third argument advanced in behalf of the heirs-atlaw, to the effect that the matter has been judicially settled by the decree of the Supreme
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Judicial Court previously referred to. One of the essential elements of the doctrine of res
judicata is identity of issue. It is clear that the issue for our determination at this time is not
at all the issue which was concluded in the hearing which culminated in the decree of July 16,
1956. Consequently, it is our opinion that there is no strength to this argument in behalf of
the heirs-at-law.
The words ‘cy pres' are Norman French for ‘as near.’ The phrase when expressed to
its full implication was ‘cy pres comme possible’ which means ‘as near as possible.’
The doctrine of cy pres is the principle that equity will, when a charity is originally or
later becomes impossible or impractical of fulfillment, substitute another charitable object
which is believed to approach the original purpose as closely as possible. It is the theory that
equity has the power to mold the charitable trust to meet emergencies.
Where property is given in trust for a particular charitable purpose, the trust will not
ordinarily fail even though it is impossible to carry out the particular purpose. In such a case
the court will ordinarily direct that the property be applied to a similar charitable purpose.
The theory is that the testator would have desired that the property be so applied if he had
realized that it would be impossible to carry out the particular purpose. The theory is that
although the testator intended that the property should be applied to the particular charitable
purpose named by him, yet he had a more general intention to devote the property to
charitable purposes. The settlor would presumably have desired that the property should be
applied to purposes as nearly as may be like the purposes stated by him rather than that the
trust should fail altogether. The principle under which the courts thus attempt to save a
charitable trust from failure by carrying out the more general purpose of the testator and
carrying out approximately though not exactly his more specific intent is called the doctrine
of cy pres.’ Scott on Trusts, Vol. 3, §399.
‘Cy pres means ‘as near to,’ and the doctrine is one of construction, the reason or
basis thereof being to permit the main purpose of the donor of a charitable trust
to be carried out as nearly as may be where it cannot be done to the letter.' 14
C.J.S. Chapter § 52 a., p. 512.
The cy pres doctrine is properly applied in a case where there is a general charitable
purpose, but a literal compliance with the terms of the trust becomes impossible or
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impracticable in which case the court directs the administration of the trust as nearly as
possible in conformity with the intention of the donor or testator.’ 14 C.J.S. Charities § 52 c.,
p. 514. The doctrine of cy pres does not apply to private trusts.
A very fine exposition of the prerequisites to the application of the doctrine of cy
pres can be found in Chapter 5, of the book entitled The Cy Pres Doctrine in the United
States by Edith L. Fisch.
The author points out that before the cy pres doctrine will be applied three
prerequisites must be met. First, the court must find that the gift creates a valid charitable
trust. Second, it must be established that it is to some degree impossible, or impractical to
carry out the specific purpose of the trust, for the cy pres doctrine is inapplicable when the
particular purpose of the settlor can be effectively carried out. The third prerequisite is the
requirement of a general charitable intention, and it is this prerequisite which has given rise
to most of the litigation in cy pres cases. This requirement of general charitable intent grew
up as a result of the theory that the cy pres doctrine is a device to carry out the intent of the
settlor of the trust.
The first prerequisite, :-That the gift creates a valid charitable trust, has been taken
care of by the decision of this Court in509, 84A 1070, Petition of Pierce, 109 Me. 509, 84A.
1070, in which the Court held that the bequest in the How will is in terms a good public
charitable bequest.
Passing now to the second prerequisite, that it must be established that it is to some
degree impossible or impractical to carry out the specific purpose of the trust, we find a
situation where all the interested parties are agreed, and this statement applies to the heirs-atlaw as well, that while the number of indigent seamen of the class seemingly intended by the
testator has become substantially reduced, it has not entirely disappeared. Moreover, the
record clearly indicates that there are still indigent seamen in existence, even of the class to
which the testator belonged. Consequently, the trust has not entirely failed. However, it is
also clear that the trust fund now available is in an amount too large to permit its application
for the relief of indigent seamen of the class to which the testator belonged. It has, therefore,
become impossible to carry out the specific purpose of the trust, if the specific purpose was
to render assistance only to indigent seamen of the class to which the testator belonged.

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The important issue, therefore, for determination is whether or not the testator
expressed in his will a general charitable intent. If so, then the application of the cy pres
doctrine would be in order and the scope of the beneficiaries seemingly covered in the trust
can be broadened and enlarged. In other words, seamen of a type different from that to
which the testator belonged can be included as beneficiaries.
We give our attention, therefore, to the issue of determining whether or not Captain
How manifested a general charitable intention when he created the trust which is now
before us for construction.
Legal authors all describe this general charitable intention as a desire to give to
charity generally, rather than to any one party, object or institution.
The question of whether or not a testator is making a charitable bequest has evinced
a general charitable intent or is making a specific bequest to a specific beneficiary for a
specific charitable purpose is a question of interpretation of the particular will under
consideration. To attempt to formulate a general rule which would solve all such cases would
be an attempt to achieve the impossible. Nor do the cases from our own or other
jurisdictions materially aid in deciding the particular question of interpretation with which we
are here concerned, as distinguished from a decision of the fundamental principles of law
from which the authority of the Court to apply the cy pres doctrine arises.’ First Universalist
Soc., Bath v..Swett, 148 Me 142, 150, 90 A2d 812, 817.
Authors on the subject of trusts are all in accord that if property is given in trust to
be applied to a particular charitable purpose, and at the time when the property is given it is
possible and practical and legal to carry out the particular purpose, but subsequently owing
to a change of circumstances it becomes impossible or impractical or illegal to carry out the
particular purpose, it is easier to find a more general charitable intention of the settlor than it
is where the particular purpose fails at the outset.
A review of the cases decided by this Court in which the principle of the cy pres
doctrine was involved may be of interest. The doctrine was discussed in Allen v. Trustees of
Nasson Institute, 107 Me. 120, 77 A 638. In this case, the Court pointed out that the doctrine
applies only when two prerequisites exist, viz., when the court may see in the instrument a
general charitable purpose as well as a specific gift, which has failed. In deciding that the cy
214

pres doctrine did not apply, the court found that neither of these prerequisites existed. The
trust had not failed and there was no evidence of a general charitable intent.
In Brooks v. Belfast, 90 Me. 318, 38 A. 222, the Court found that there was a gift for a
specific purpose with no general charitable intent and so the doctrine was not applied. Again
in Doyle v. Whalen, 87 Me. 414, 32 A. 1022, 31 L.R.A. 118, it was held that the trust created in
this instance was for the benefit of definite persons who could be identified, and so the
doctrine was not applied.
The doctrine was applied in Manufacturers National Bank v. Woodward, 141 Me. 28, 38
A.2d 657; in Stevens v. Smith, 134 Me. 175, 183 A. 344; in Snow & Clifford v. President and
Trustees of Bowdoin College, 133 Me. 195, 175 A. 268 and in Lynch v. South Congregational Parish of
Augusta, 109 Me. 32, 82A. 432..
The doctrine was not applied in Dupont v. Pelletier, 120 Me. 114, 113 A. 11; Bancroft v.
Maine State Sanatorium Association, 119 Me. 56, 109 A. 585; Gilman v. Burnett, 116 Me. 382, 102
A. 108, L.R.A. 1918A, 794 in Merrill v Hayden, 86 Me. 133, 29 A. 949.
In the case of Merrill v. Hayden, supra, a testator had left all of his property to one of
his two daughters, to hold during her lifetime, and at her death the residue was to go to the
Maine Free Baptist Home Missionary Society. During the lifetime of the testator this society
was dissolved by act of the Legislature and all its property transferred to another Association
created for a different purpose. It was held that the legacy lapsed and the cy pres doctrine
not applicable.
In Gilman v. Burnett, supra, and Bancroft v. Maine State Sanatorium Association, supra, the
cy pres doctrine was not applied because the Court found no evidence of general charitable
intent.
In the case of Lynch v. South Congregational Parish of Augusta, supra, the Court found
that after reading the will in the light of existing conditions, the testator had evinced a
general charitable intention and the doctrine of cy pres was applied.
In the cases of Snow & Clifford v. President and Trustees of Bowdoin College, supra, and
Stevens v. Smith, supra, the Court reached the conclusion that the testators had evinced a
general charitable intention and upon inability to comply with the original purpose of the
trust, the doctrine of cy pres became applicable.
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Two cases from other jurisdictions where the doctrine was applied are of interest. In
the case of Society for Promoting Theological Education v. Attorney General, 135 Mass. 285, a trust
was set up providing that indigent students in theology who should be deemed worthy of
assistance would be paid sums not exceeding one hundred or one hundred fifty dollars a year
for three years. The trust income increased substantially and there was not a sufficient
number of indigent students to exhaust the income. The court ruled that under the cy pres
doctrine the payments could be increased.
In the case of Hoyt v. Bliss, a Connecticut case, 93 Conn. 344, 105 A. 699, a trust was
set up providing for the support of one student. A surplus of money developed and the
court ruled that the trustee could use the money to support additional students.
While, as previously stated, it seems to have been assumed by all interested parties
that the beneficiaries of the trust created by Captain How were indigent seamen of the class
to which he belonged, we are not thoroughly convinced that this is so. At times much earlier
than the year when Captain How's will was executed, our Court had described crewmen of
other types of vessels as seamen.
It seems apparent that even in 1870, the term ‘seamen’ was not limited to mariners
of the type who manned vessels such as the Ellen Stevens.
That this is so, is shown by a decision of this Court in Lewis v. Chadbourne, 54 Me.
484; a case decided prior to 1868, in which fishermen in the mackerel industry were
described as seamen. Another is Holden v. French, 68 Me. 241, decided in 1878, in which this
Court described the crewmen of a fishing vessel as seamen.
If we endeavor to project ourselves into the past and contemplate upon the intention
of Captain How, we may well suppose that while he was perhaps primarily interested in
crewmen of ships such as he was master of, he nevertheless had in mind that wider group of
men whose major means of livelihood was gained from the sea. He used the expression, in
his will ‘the class of indigent seamen.’ Webster describes the word ‘class' as ‘a group of
individuals ranked together as possessing common characteristics or as having the same
status;’ and also ‘a group of persons, having common characteristics or attributes.’
Webster defines the word ‘indigent’ as follows: ‘Destitute of property or means of
comfortable subsistence; needy; poor; in want; necessitous'; and Joseph Addison the English
216

poet and essayist said: ‘Charity consists in relieving the indigent.’
After making provision for those most dear and close to him, his wife, mother and
brother, Captain How gave all of his estate for a public charity. The will neither provides for
forfeiture or limitation over. We are convinced that when he executed his will on the day
before he died, he was imbued with a deep charitable intent, and that he intended all of his
wordly goods and effects to be devoted forever to the relief of indigent seamen, not only of
the class to which he belonged, but to all classes of indigent seamen.
It is, therefore, our opinion that the scope of the beneficiaries of this kindly gift
should be widened and enlarged. We reach this conclusion not necessarily through the
application of the cy pres doctrine, but rather through an interpretation of the intention of
the testator at the time be executed his will. See Guilford Trust Company v. LaFleur (Inhabitants of
Gulford), 148 Me. 162, 91 A.2d 17.
The trustee is, therefore, authorized to use and employ the income for the benefit of
indigent seamen not only of the class to which Captain How belonged, but to other classes,
by way of illustration and not of limitation, such as crewmen of merchant vessels, oil tankers
and fishing vessels.
In the determination of who shall be classed as indigent seamen, the trustee may give
consideration to the modern laws and latter day adjudications as to the interpretation of
what a ‘seaman’ is.
A good definition is to be found in 79 C.JH.S. Seamen §, (a.) p. 490.
‘While the word ‘seaman’ is a flexible word, the meaning of which ordinarily
depends on the circumstances in which it is used, in the broad sense of the word
a seaman is a mariner of any degree, including one who does any sort of work
aboard a ship in navigation.'
In her petition, the trustee requested instructions as to whether or not lobster
fishermen may be included among the beneficiaries. We are of the opinion that lobster
fishermen are not seamen within the meaning of the foregoing definition, nor within the
intention of the testator.
The trustee is given the right to employ agents for the purpose of investigating
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cases, and to pay such agents reasonable compensation for their services and charge the
same to the trust fund. The trustee in using and employing the income for the benefit of
indigent seamen of the classes above described, may do this directly or she may turn over the
income to some worthy association or associations organized for that purpose; the exact
details to be left to a Justice of the Supreme Judicial Court who is to determine to whom the
income shall be paid and through what channel the gift can be made most effective.
Associations to whom any portion of the income is paid may charge a reasonable
commission for expenses of administration, the amount of such commission to be
determined by the trustee, subject to the approval of a Justice of the Supreme Judicial Court.
Any association to whom any of the income is paid shall file at least annually an account of
its disbursements with the trustee. The Portland Seamen's Friend Society to whom the sum
of $10,000 has already been paid shall forthwith file an account of its disbursements with the
trustee. Copies of all accounts of the trustee which are filed in the Probate Court, as well as
copies filed by associations to whom any portion of the income has been paid are to be filed
with the Attorney General of the State of Maine.
Case remanded to the sitting Justice for a decree in accordance with this opinion.

In the Matter of the Lucas Charitable Gift, 261 P.3d 800
Opinion of the Court by LEONARD J.
Petitioner–Appellant Hawaiian Humane Society (HHS) appeals from the following
judgment and orders of the Circuit Court of the First Circuit, sitting in Probate (Probate
Court): (1) Order Denying Petition to Approve Land Exchange Free and Clear of Use
Restrictions (Order Denying Petition), filed on May 18, 2009; (2) Order Denying Petition for
Relief from Order Denying Petition to Approve Land Exchange Free and Clear of Use
Restrictions and for Entry of Final Judgment, filed on December 21, 2009 (Order Denying
Relief); and (3) Judgment Pursuant to Order Denying Petition to Approve Land Exchange
Free and Clear of Use Restrictions (Judgment), filed on December 21, 2009. In this case, the
Probate Court declined to apply the doctrine of cy pres to modify a charitable gift of land.
The position of all parties on appeal is that the Probate Court erred in failing to apply cy pres
to approve the proposed land transaction. We agree and, accordingly, vacate the Judgment
and remand with instructions.
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I. BACKGROUND
A. The Charitable Gift
The underlying petition in this case stems from HHS's acquisition of an interest in
certain land in the Niu Valley, obtained through a charitable gift. On December 28, 1976,
Elizabeth J.K.L. Lucas (Mrs. Lucas) granted HHS a 50.6183968% undivided interest in the
land by way of deed. On December 30, 1982, she conveyed an additional 1.4% undivided
interest in the land to HHS by way of a second deed. Both deeds contain the following use
restriction:
[F]or and as a charitable gift, [Mrs. Lucas] does hereby grant, bargain, sell and
convey the property hereinafter described unto the HAWAIIAN HUMANE
SOCIETY ... so long as the same shall be used for the benefit of the public for
the operation of an educational preserve for flora and fauna, to be made
accessible as an educational experience for the public under the control and
administration of said Hawaiian Humane Society and its successors and assigns,
and, if not so used, then to State of Hawaii and its successors and assigns, for
and as a public park.
Upon Mrs. Lucas's death in 1986, her remaining 47.981603% interest in the land
passed through her estate to her daughter, grandchildren, and great-grandchildren (the
Thompsons), all of whom have resided on the land for many years. The Thompsons formed
a Hawai‘i general partnership, Respondent–Appellee Tiana Partners, to which they
transferred their interest in the land.
B. Attempts to Use the Gifted Land
After receiving the land, HHS made numerous attempts to plan a feasible use for the
land in furtherance of the deed restrictions. In consultation with Tiana Partners, HHS
considered many different ideas for effectuating the purpose stated in the deeds, but
ultimately rejected them as physically or economically unfeasible.
In 2003, HHS commissioned a feasibility study for a proposed low-intensity
development that would be accessible to the public. The study led HHS to conclude that
using the land for a public educational preserve would be extremely expensive and
impractical. It would require disrupting the Thompson residences and surrounding
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neighborhood.
During 2004 and 2005, HHS and Tiana Partners conducted a series of meetings with
various community organizations, including the Honolulu Zoo, the Hawai‘i Nature Center,
and the Department of Education. The purpose of the meetings was to identify potential
uses for the land that would be consistent with the intent of the gift, beneficial to the
community, and physically and economically feasible. Due to the residential character of the
surrounding neighborhood, an overriding consideration was maintaining peaceful
coexistence with the Thompsons and other residents in the area. Access to the property was
also a key consideration. The land is remote; much of it is steep; and it is accessible only by
two residential roads. Using either road for public access would have a disruptive impact on
the neighboring residents.
The State of Hawai‘i (State) Department of Land and Natural Resources (DLNR)
likewise determined that the land was not suitable for use as a public park. However, it
determined that a portion of the land, Parcel 2, was best-suited for watershed and forest
reserve purposes.
C. Land Exchange Agreement
HHS and Tiana Partners began considering other ways to further the intent of the
original gift. On September 11, 2006, after extensive negotiations, they signed a
Memorandum of Understanding (MOU). The MOU contemplates a three-way land
exchange and sale between HHS, Tiana Partners, and the State. HHS and Tiana Partners
agreed to convey their interests in Parcel 2 to the State. In exchange, the State would release
its executory interest in the remaining parcels. HHS also agreed to convey its interest in the
remaining parcels (1, 20, and 21) to Tiana Partners, free and clear of the use restriction, for
$1,082,850. HHS would use the proceeds to establish a segregated fund known as the
“Charles and Clorinda Lucas Educational Fund” (Educational Fund). The principal and
interest would be dedicated exclusively to HHS's educational programs. These programs are
designed to foster compassion and caring for all life, focusing on the interdependent
relationship between animals, humans, and the environment and our role as stewards and
caregivers.
The MOU conditioned the proposed land exchange upon: (1) the agreement of the
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State Board of Land and Natural Resources (BLNR); (2) the approval of the Hawai‘i
Legislature, pursuant to Hawaii Revised Statutes (HRS) § 171-50 and (3) the approval of the
Probate Court. At board meetings on December 8, 2006 and December 14, 2007, the BLNR
approved in principle the land exchange transaction. In December of 2007, the Legislature
also approved the transaction.
D. Petition to Approve Land Exchange
On October 28, 2008, HHS filed a Petition to Approve Land Exchange Free and
Clear of Use Restrictions (Petition) with the Probate Court. The Petition sought an order
approving the proposed land transaction and eliminating the use restriction on the land.
HHS maintained that the Probate Court had authority to modify the terms of the charitable
gift because its stated purpose was impracticable and could not reasonably be accomplished.
The Attorney General, acting as parens patrie, filed a response to the Petition on
November 19, 2008. He stated no objection to the relief sought and affirmed that the use
restriction “has been proven demonstrably impracticable or impossible and ... the relief
sought in the petition is fair and reasonable and is consistent with the doctrine of cy pres.”
The State filed a joinder in the Petition on November 21, 2008. The Administrator of the
Division of Forestry and Wildlife of the DLNR filed a declaration attesting that the DLNR
had inspected and reviewed the properties described in the Petition. The DLNR
“determined that these properties are not presently suitable for use as a public park, and in
particular that Parcel 2 is best used for watershed and forest reserve purposes.”
Laura Thompson (Thompson), Mrs. Lucas's daughter, filed a declaration attesting
that Mrs. Lucas would have fully supported the land exchange “as a compromise necessary
to further her deep interest in all things natural and her strong commitment to education,
which can be accomplished far better through the broad reach of the Hawaiian Humane
Society than in a narrow urban valley.” She attested that Mrs. Lucas “was actively involved
with the Hawaiian Humane Society throughout her life” and served on its Board of
Directors. Mrs. Lucas fully supported its mission “to promote the bond between humans
and animals and to foster the humane treatment of all animals.” Thompson believed her
mother was not aware of the obstacles preventing development of the land in accordance
with the deeds. She believed her mother's original intent in gifting the land was “to benefit
the people of Hawai‘'i through the work of the Hawaiian Humane Society” and to “help the
221

Society provide an educational experience for the public.”
E. Probate Court Order and Judgment
Following a hearing, the Probate Court entered the Order Denying Petition on May
18, 2009. The court stated the following grounds as its basis for the denial:
1. The deeds provide, “... for and as a charitable gift, does hereby grant,
bargain, sell and convey the property hereinafter described unto the
Hawaiian Humane Society, ... so long as the same shall be used for the
benefit of the public for the operation of an educational preserve for flora
and fauna, to be made accessible as an educational experience for the public
under the control and administration of said Hawaiian Humane Society, ...
and if not so used, then to State of Hawaii, its successors and assigns for and
as a public park, ...”
2. Even if the Court finds that the deeds create a charitable trust, the
Memorandum of Understanding does not involve the use of the properties
as stated in the deeds. The Memorandum of Understanding states that the
Petitioner will receive cash in exchange for conveying its interest in the
properties and will use the cash “... to establish a segregated fund to be
known as the ‘Charles and Clorinda Lucas Educational Fund,’ the principle
[sic] and interest of which fund shall be used exclusively to pay the costs
associated with educational programs designed to foster compassion and
caring for all life, focused on the interdependent relationship between
animals, humans and the environment and on our roles as stewards and
caregivers.”
3. Mrs. Lucas' charitable purpose as stated in the deeds is to use the
properties for the operation of an educational preserve for flora and fauna, to
be made accessible as an educational experience for the public. The deeds
also provide that if the petitioner does not use the properties for the stated
charitable purpose, the properties would go to the State of Hawaii.
4. The doctrine of cy pres does not apply to the Petitioner since the deeds
provide for an alternative if the properties are not used by the Petitioner as
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Mrs. Lucas intended.
On August 3, 2009, HHS filed a petition for relief from the Probate Court's Order
Denying Petition. The Attorney General and Tiana Partners filed joinders in the petition for
relief, and the State filed a memorandum of no opposition. All interested parties agreed that
the Probate Court misconstrued the cy pres doctrine and that it should have approved the
transaction.
On December 21, 2009, the Probate Court entered the Order Denying Relief and the
Judgment. HHS timely appealed.
II. POINTS OF ERROR
On appeal, HHS argues that the Probate Court erred in denying the Petition and
refusing to modify the terms of the charitable gift to approve the proposed land exchange.
Tiana Partners filed an Answering Brief in support of HHS's position. The State filed an
Answering Brief expressing its non-opposition and joinder in HHS's request for relief.
III. STANDARDS OF REVIEW
Hawai‘i courts have not addressed the applicable standard of review for a lower
court's refusal to apply the doctrine of cy pres. In applying an analogous doctrine to reform
the terms of a private trust, the supreme court analyzed the issue as a question of law. In re
Estate of Chun Quan Yee Hop, 52 Haw. 40-45, 46, 469 P.2d 183, 186-87 (1970). Other
jurisdictions have held that whether cy pres applies is a question of law, reviewable de novo. See,
e.g., Koln v. City of Storm Lake, 736 N.W.2d 546, 552-53 (Iowa 2007); In re R.B. Plummer
Memorial Loan Fund Trust, 266 Neb. 1, 661 N.W.2d 307, 311 (2003); Puget Sound Nat’l Bank of
Tacoma v. Easterday, 56 Wash.2d 937, 350 P.2d 444, 447 (1960); ABC for Health, Inc. v. Comm’r
of Ins., 250 Wis.2d 56, 640 N.W.2d 510, 515 (Wis. Ct. App. 2001). Accordingly, we hold that
the issue of whether the doctrine of cy pres is applicable is a question of law, reviewable de
novo. Once cy pres is determined to be applicable, the lower court has discretion in
determining the appropriate modification of the charitable gift. Obermeyer v. Bank of America,
N.A., 140 S.W.3d 18, 22 (Mo. 2004).
IV. DISCUSSION
A. Cy Pres Generally
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The doctrine of cy pres “permits a gift for a charitable purpose which cannot, for one
reason or another, be carried out as directed by the donor, to be applied ‘as nearly as may be’
to the fulfillment of the underlying charitable intent.” 15 Am. Jur.2d Charities §149
(2011)(Am.Jur.2d). Under the doctrine's traditional formulation, three elements are required:
(1) there must be property given in trust for a charitable purpose; (2) it must be impossible,
impracticable, or illegal to carry out the specified charitable purpose; and (3) the settlor must
have manifested a general intent to devote the property to charitable purposes. Id.
Hawai‘i courts have not directly addressed or applied the cy pres doctrine. However,
the supreme court has recognized the doctrine in dictum. Chun Quan Yee Hop, 52 Haw. at 45,
469 P.2d at 186. It noted that “[i]f it is impossible, impractical or illegal to carry out the
specific terms of a charitable trust in which the settlor has indicated a general charitable
purpose, many courts will authorize the substitution of another charitable scheme within the
testator's general purposes.” Id. The court went on to apply an analogous doctrine to save a
private trust from failing due to its contravention of the Rule Against Perpetuities. Id. 45-46,
469 P.2d at 186-87.
Cy pres is only applicable to charitable trusts. Restatement (Third) of Trusts § 67, cmt.
a (2003) (Restatement 3d); Am.Jur.2d §149. Various policy considerations underlie its
application. First and foremost, the doctrine stems from the inability of charitable settlors to
foresee the future. Restatement 3d, Reporter's Notes, cmt. a (recognizing that without cy pres,
“many charities would fail by change of circumstances and the happening of contingencies
which no human foresight could provide against”). Circumstances change and contingencies
frequently arise that the settlor did not or could not anticipate. This is particularly true for
charitable trusts, as they may be perpetual in duration. Id.; Ronald Chester, George Gleason
Bogert, and George Taylor Bogert, The Law of Trusts & Trustees § 431, at 117 (3d. ed.
2005)(Bogert on Trusts ). The “needs and circumstances of society evolve over time,”
impacting the potential benefit of the trust. Restatement 3d § 67, cmt. a. Rather than allowing
the trust to fail, cy pres preserves the settlor's charitable intent by conforming the trust to the
contingencies that arise. Thus “[j]ust as it is against the policy of the trust law to permit
wasteful or seriously inefficient use of resources dedicated to charity, trust law also favors an
interpretation that would sustain a charitable trust and avoid the return of the trust property
to the settlor or successors in interest.” Id. at cmt. b. Similarly, because charitable trusts
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impact a broad spectrum of the public and “are allowed by the law to be perpetual,” they
often merit a greater exercise of judicial discretion than a private trust. Id. at Reporter's
Notes, cmt. a.
Courts widely recognize that the charitable purpose need not be impossible to
warrant applying cy pres. It is sufficient that achieving the settlor's stated purpose would be
impracticable or unreasonable to effectuate. Restatement 3d § 67, cmt. c (“The doctrine of cy
pres may also be applied, even though it is possible to carry out the particular purpose of the
settlor, if to do so would not accomplish the settlor's charitable objective, or would not do so in
a reasonable way.”) (second emphasis added); Bogert on Trusts § 438, at 194-96 (recognizing
insufficiency of funds as basis for doctrine); Scott on Trusts § 39.5.2, at 2717–20; § 39.5.4, at
2740–41; Am.Jur.2d § 151 (doctrine is applicable where donor's directions “cannot beneficially
be carried into effect”) (emphasis added; punctuation altered). “An impractical restriction is
one that is not capable of being carried out in practice.” Am.Jur.2d § 157. If literal
compliance would “defeat or substantially impair” the purposes of the trust, cy pres is
applicable. Restatement 2d §399, cmt. a. The purpose of the trust becomes impaired if “the
application of [trust] property to such purpose would not accomplish the general charitable
intention of the settlor.” 88 Am. Jur.. Proof of Facts 3d 469, § 10 (2006) (Am.Jur. Proof of Facts
3d).
Thus, cy pres is applicable where a settlor creates a charitable trust of real property to
be used for a particular purpose, but the property turns out to be unsuitable for that
purpose. See Scott on Trusts § 39.5.2, at 2724–25; Roberds v. Markham, 81 F.Supp. 38, 40
(D.D.C. 1948) (recognizing that courts may order sale of gifted land if conditions have
drastically changed or land otherwise becomes unsuitable for its dedicated purpose); Bd. of
Educ. Of Rockford v. City of Rockford, 372 Ill. 442, 24 N.E.2d 366, 369-73 (1939) applying cy pres
to allow sale of land in charitable trust where its dedicated use as school became
impracticable due to shifting populations, deterioration of existing building, and existence of
another school that met needs of the area). In one case, for example, a settlor gifted certain
land to a charity for the purpose of building a public library upon the land. Bosson v. Woman’s
Christian Nat’l Library Ass’n, 216 Ark. 334, 225 S.W.2d 336, 337 (1949). The land turned out
to be unsuitable for constructing a library. Id. The charity reached an agreement with a
county library board under which it would sell the land and use the proceeds to build a
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public library upon property owned by the county board. Id . The board agreed to operate
the library for the benefit and use of the public. Id at 337-38. On appeal, the court applied cy
pres to approve the transaction. Id at 338-39. It noted that cy pres applies where the
circumstances “have changed to such an extent that in order to carry out properly the
charitable intention of the donor, it is necessary to dispose of the trust property and devote
the funds to the acquisition of a more suitable location[.]”. Id at 338. (internal quotation
marks and citation omitted).
Similarly, a California court applied cy pres where the stated purposes of the gifted
properties became impracticable. In re Estate of Zahm, 16 Cal. App.3d 196, 93 Cal.Rptr. 810
(1971). There, the testatrix left two residential properties to the Salvation Army. . Id at 811.
She directed the Flower Street property to be used as a home for Christian women, and the
Keniston Avenue property as a music home. Id. After her death, the Flower Street property
was taken pursuant to eminent domain and the Keniston Avenue property was deemed
unsuitable for development due to zoning issues. . Id at 813. The Salvation Army proposed
to use the funds from the Flower Street property to erect and furnish a new building on a
different site. Id. It further proposed to sell the Keniston Avenue property and use the
proceeds to either construct a music conservatory on another site or endow a music room
under construction at another Salvation Army center. Id.
The court confirmed that cy pres was applicable. . Id at 814. It concluded that because
neither property was suitable for carrying out the testatrix's declared intentions, the lower,
court “properly directed that her charitable purposes be given effect at some other suitable
locations.” Id.; see also Bogert on Trusts § 439, at 218-20 (noting that cy pres is applicable where
trust property is taken under eminent domain).
The third element—general charitable intent—has been a source of uncertainty and
reform. Under the traditional rule, cy pres may only be applied if the settlor possessed a
general charitable intent. Am.Jur.2d § 153. His or her intent must have encompassed
“something beyond the specific terms used in designating the beneficiary or purpose of the
gift or how it shall be carried into effect.” Id.; see also Restatement 2d §399; Bogert, on Trusts §
431, at 119; § 436, at 157–60. The donor must have had a general charitable intent, as
opposed to a narrow intent to benefit only a “particular project, objective, or institution[.]”
Am.Jur.2d § 153. For example, where a settlor's dominant intent is to restrict the charitable
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gift to the exact purpose specified, courts may presume that the donor would not have
wanted the property to be applied to any other purpose, however closely related, even if the
original purpose fails. Restatement 2d §399, cmt. d. / In such situations, cy pres is not applicable
because the settlor did not have a general charitable intent. Id.; see also Shoemaker v. Am. Sec.
& Trust Co., 163 F.2d 585, 588 (D.C. Cir. 1947) (noting that cy pres does not apply if settlor's
“dominant purpose has become altogether impossible of achievement”). In contrast, if the
settlor's designation of a particular property or site is incidental to the dominant charitable
purpose, then courts will presume that the settlor's primary intent was to dedicate the
property to charitable purposes. Shoemaker, 163 F.2d at 589; see also In re Wilkey’s Estate, 337
Pa. 129, 10 A.2d 425, 428 (1940) (recognizing that cy pres applies where “the physical location
of the edifice or institution provided for in a charitable trust has been held to be of
secondary importance in comparison with the general purpose for which the erection of the
building or the carrying on of the charitable activity was designed”). In such cases, cy pres is
readily applicable to effectuate the settlor's general charitable intent. Shoemaker, 163 F.2d at
589.
Increasingly, the “general charitable intent” requirement has shifted to an “opt-out”
framework under which the settlor is presumed to have a general charitable intent unless the
terms of the trust provide otherwise. See Restatement 3d § 67, cmt. b; Reporter's Notes, cmt. b;
Unif. Trust Code §413(a). 7C U.L.A. 509 (2006); Bogert on Trusts § 436, at 160 (noting that “it
would seem preferable” either to employ presumption in favor of general intent or apply cy
pres regardless of whether settlor's charitable intent was general or specific); but see Am.Jur.
Proof of Facts 3d § 6 (noting that “presumption of general charitable purpose has not yet been
discussed in the reported decisions”). Commentators have noted that the “general intent”
requirement is vague and difficult to apply consistently. Ronald Chester, Cy Pres or Gift Over?:
The Search for Coherence in Judicial Reform of Failed Charitable Trusts, 23 Suffolk U.L. Rev. 41, 4546 (1989); accord Bogert on Trusts § 436, at 183-89; § 437, at 183–89 (noting widespread
inconsistency in applying this requirement). It turns on a fine, and often subjective,
distinction between a settlor's dominant and incidental or subsidiary objectives. See Bogert on
Trusts § 437, at 183-89. In contrast, the opt-out rule provides a clearer delineation that avoids
guesswork as to the subtleties of the settlor's intent.
Finally, in applying cy pres, courts must generally seek a purpose that conforms to the
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donor's objective “as nearly as possible.” Am.Jur.2d § 157. This may be attained by limiting
or modifying the objective; by diverting the funds to another use in the “same generally
contemplated field”; or by directing sale of the subject property. Id.; Am.Jur. Proof of Facts 3d
§ 10; Restatement 2d §399, cmt. p (cy pres allows sale of land even if “the settlor in specific
words directed that the land should not be sold and that the institution should not be
maintained in any other place”). In the case of a sale, the proceeds may be applied to
purchase a new, more suitable site, or to further the settlor's charitable intent in another
manner. See Am.Jur. Proof of Facts 3d § 21. Where a charitable gift of property is subject to
use restrictions, the court may apply cy pres to modify or eliminate those restrictions. Id. at §
22; Bogert on Trusts § 431, at 115; Scott on Trusts § 39.5.2, at 2716.
In determining the appropriate modification, courts must consider a variety of
factors and evidence to ascertain what the settlor's wishes would have been had he or she
anticipated the circumstances. Restatement 3d § 67, cmt. d. Chief among them is the settlor's
probable intent. Id. Where the settlor is deceased, this intent may be discerned from extrinsic
evidence as well as the language of the trust instrument. Such evidence includes the interests
and attitudes that motivated the settlor's gift; his or her involvement or interest in particular
charitable institutions; and the settlor's “relationships, social or religious affiliations, personal
background, charitable-giving history, and the like.” Id.; accord Bogert on Trusts § 442, at 25758. The language of the trust instrument is also pertinent. Restatement 2d § 399, cmt. d.
The modern approach to cy pres also emphasizes considering the efficiency and
beneficial impact of the proposed use. Restatement 3d § 67, cmt. d. As the settlor's intent
cannot be known for certain, applying cy pres necessarily involves some level of speculation.
Id.; accord Scott on Trusts § 39.5.2, at 2709 (noting that courts must make “an educated guess”
as to settlor's wishes). Thus, it is generally “reasonable to suppose that among relatively
similar purposes, charitably-inclined settlors would tend to prefer those most beneficial to
their communities. Restatement 3d § 67, cmt. d (emphasis omitted; punctuation altered). To an
increasing extent, courts thus seek to apply the trust property toward “a scheme which on
the whole is best suited to accomplish the general charitable purpose of the donor.”
Restatement 2d § 399, cmt. b. Finally, the wishes of the trustees, the Attorney General as parens
patrie, the beneficiaries, and other interested parties also warrant consideration. Id. at cmt. f;
Bogert on Trusts § 442, at 258.
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B. Gift over Rule
Having established the broad contours of the cy pres doctrine, we now turn to the
heart of the issue on appeal: whether the Probate Court erred in concluding that cy pres is not
applicable in this case. The Probate Court reasoned that cy pres does not apply because the
deeds provide an alternative distribution in the event that the primary charitable purpose
fails. It concluded that “if [HHS] does not use the properties for the stated charitable
purpose, the properties would go to the State of Hawaii.”
The Probate Court's rationale appears to invoke the gift over rule. A gift over is a
provision that sets forth an alternative distribution in the event that the primary purpose of
the charitable gift fails. Am.Jur.2d § 151. The presence of a gift over provision may
potentially preclude application of cy pres in two ways: (1) by negating the existence of a
general charitable intent, and (2) by providing an alternative distribution in the event that the
settlor's original purpose fails. Restatement 2d § 399, Reporter's Notes, cmt. c; Am.Jur.2d §
151; Scott on Trusts § 39.5.2, at 2710–13; § 39.7.5, at 2795–97; 14 C.J.S. Charities § 56 (2011).
The first application of the gift over rule is only relevant to the traditional
requirement that the settlor exhibit a general charitable intent. Under this reasoning, the gift
over confirms the settlor's narrow and specific intent. 14 C.J.S. Charities § 56. This is
especially true where the gift over is to a non-charity, such as a possibility of reverter. Nelson
v.Kring, 225 Kan. 499, 592 P.2d 438, 444 (1979); In re Goehringer’s Will, 69 Misc.2d 145, 329
N.Y.S.2d 516, 521 (N.Y. Surr. Ct 1972) (noting that presence of gift over provision “is a
clear manifestation that [the] testator had a particular rather than general charitable
intention”); Roberds, 81 F.Supp. at 40-42 (concluding that because deed contained possibility
of reverter if land ever ceased to be used for its prescribed purpose, settlor's intent was
specific to that purpose). Such a provision indicates that the settlor only wished to dedicate
the property to a specific purpose and, if that specific purpose failed, to not dedicate it to
charity at all. In re Goehringer’s Will, 329 N.Y.S.2d at 521 (“[A] specific gift over will almost
conclusively preclude any determination that he had other than an intent to benefit the
particular charity.”).
In contrast, where the gift over is to another charity or charitable purpose, many
courts recognize that it confirms a general charitable intent. See Bogert on Trusts § 437, at 16570; Scott on Trusts § 39.5.2, at 2713; First Nat’l Bank of Chicago v. Elliott, 406 Ill. 44, 92 N.E.2d
229

66, 74 (1950). Such a provision illustrates the settlor's intent to dedicate the property to
charity, even if the original purpose fails. Bogert on Trusts § 437, at 165-70.
Here, the deeds provide an alternative charitable purpose: for the land to be used by
the State as a public park. Under the traditional formulation of the charitable intent
requirement, the gift over in this case confirms Mrs. Lucas's general charitable intent. Thus,
regardless of the continuing viability of the general intent requirement, the gift over
provision does not prevent application of cy pres under the first rationale.
In any event, it does not appear that the Probate Court applied the first rationale of
the gift over rule. The Order Denying Petition contains no mention of general charitable
intent. Instead, the Court's reasoning conforms to the second rationale. It concluded that
because the deeds direct an alternative distribution, cy pres is inapplicable.
This second application of the gift over rule provides that cy pres is inapplicable as the
trust property should be applied toward its alternative purpose. 14 C.J.S. Charities § 56. The
rule reasons that the settlor foresaw the potential failure of the first purpose and accordingly
provided an alternative purpose. Id. Thus, effectuating the alternative distribution matches
the settlor's intent more closely than applying cy pres to maintain the first, failed purpose.
A number of cases affirm the straightforward application of this rule. In Roberdss v.
Markham, for example, the settlor conveyed property in trust to a church for its continuing
operation as a church or place of worship. 81 F.Supp. at 39. The deed provided that if the
property ever ceased to be used for church purposes, it would revert to the settlor's heirs and
assigns. Id. Many years later, when the character of the surrounding neighborhood had
changed and the church's population had shifted, the trustees sought to sell the property and
re-erect the church at another, more suitable location. Id. The court concluded that because
the deed contained a possibility of reverter, the settler had intended the land to revert to her
heirs and assigns if its use as a church ever became impracticable or impossible. . Id at 40-42.
It therefore did not apply cy pres to permit the sale. Id at 42; see also First Nat’l Bank of Chicago
v. Am. Bd. of Comm’rs for Foreign Missions, 328 Ill. App. 481, 66 N.E.2d 446, 448-49 (1946)
declining to apply cy pres where will impliedly provided for substitute distribution); accord
Conn. Bank & Trust Co. v. Cyril and Julia C. Johnson Mem’l Hosp., 30 Conn. Supp. 1, 294 A.2d
586, 591-93 (1972); Hail v. Cook, 294 S.W.2d 87, 88-89 (Ky. 1956).

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Yet this application of the gift over rule is subject to an important caveat. Where the
alternative distribution is unfeasible, impracticable, or impossible, then the gift over rule
does not preclude the application of cy pres to save the first charitable purpose. Am.Jur. Proof
of Facts 3d § 19; 14 C.J.S. Charities § 56; Restatement 3d § 67, cmt. b. In such cases, applying
the alternative purpose would likewise frustrate or substantially impair the settlor's intent. Cy
pres is thus necessary to save the trust from failure.
It appears that only one reported case has addressed this relatively rare scenario. Burr
v. Brooks, 75 Ill. App.3d 80, 30 Ill. Dec. 744, 393 N.E.2d 1091 (1979), aff'd, Burr v. Brooks, 83
Ill.2d 488, 48 Ill. Dec. 200, 416 N.E.2d 231 (1981). In Barr, the testator bequeathed certain
real property and funds to the City of Bloomington for the construction and operation of a
memorial hospital. Id. at 1093. The will directed the hospital to be constructed on the site
where the testator had resided. . Id. It was to be operated especially for the benefit of
indigent accident victims. Id. The will also directed an alternative distribution in the event
that the City declined the bequest. Id. The substitute purpose required the trustees to
construct and maintain an “Industrial School for Girls” on the site of his former residence.
Id.
The City adopted a resolution purporting to accept the bequest. Id. at 1094.
However, it determined that the site was not suitable for construction of a hospital, that
there were already sufficient hospitals in the area, and that it could not obtain the requisite
permission from governing authorities. Id. It thus sought to sell the real property and apply
the proceeds and remaining funds toward three related purposes that were more suitable to
the City's present needs: (1) to provide health care for indigent persons; (2) to establish a
memorial family care and diagnostic center that would offer free services to indigent
persons; and (3) to establish an emergency medical services program. Id.
The intervenors, the city school district and a non-profit successor to the county
Women's Industrial Home, opposed application of cy pres on the basis that the will provided
for an alternative charitable distribution. Id. They maintained that because the first purpose
was impracticable, the court should apply the funds toward housing and educational
programs in conformance with the alternative distribution. Id.
The parties agreed that neither proposed use of the property effected literal
compliance with the will; both the primary and alternative distributions were impracticable
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or impossible. Id. at 1095. Because the alternative distribution was also impracticable, the
presence of the gift over provision did not defeat application of the cy pres doctrine. Id. at
1095, 1097. The court noted that it would “make[ ] no sense” to apply the gift over rule in
cases where the alternative distribution, like the primary one, is incapable of literal
performance. Id. at 1097. It concluded that cy pres is applicable where a trust instrument “(1)
provides for a primary and alternate charitable gift, neither of which can be carried out, and
(2) also indicates a strong desire that the charitable interest of the document be followed.”
Id. at 1097 (punctuation altered). The appellate court thus held that the trust property should
not be summarily redirected to its alternative distribution because the alternative
beneficiaries, “like the City, would be unable to comply with the terms of either charitable
gift and could also make only a [c]y pres use of the property.” Id. It remanded for the lower
court to apply cy pres and determine which proposed use “most nearly follow[s] the interest
of the [testator].” Id. at 1098.
Burr v. Brooks thus recognizes that where the settlor provides for an alternative
charitable distribution, but that secondary purpose is also impracticable or impossible, cy pres
may apply to save the first. See Am.Jur. Proof of Facts 3d § 19 (“Where the donor provides that
on failure of the primary charitable purpose the gift shall be used for a second charitable
purpose, but makes no provision concerning the failure of the second purpose, and both
purposes fail, cy pres may be applied.”) (citing Burr v. Brooks); accord 14 C.J.S. Charities § 56
(“Where the donor provides that on failure of the primary charitable purpose, the gift will be
used for a second charitable purpose, but makes no provision concerning the failure of the
second purpose, and both purposes fail, cy pres may be applied.”) (citing Burr v. Brooks). As
one commentator recognized, if the alternative distribution “requires cy pres in order to be
viable, the presumption for saving the initial gift is strengthened. This is because the second
gift's only practical advantage over the first—that it can be plugged in automatically—no
longer remains.” Chester, Cy Pres or Gift Over?, 23 Suffolk U.L. Rev. at 62 (citing Burr v.
Brooks). The Third Restatement of Trusts has also expressly adopted this approach:
A trust provision expressing the settlor's own choice of an alternative charitable
purpose will be carried out, without need to apply the cy pres doctrine, assuming
not only that the initially specified purpose cannot be given effect or continued
but also that the alternative purpose is one that properly can be given effect.
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Restatement 3d § 67, cmt. b (emphasis added).
The approach expounded in Burr v. Brooks comports with the policies underlying cy
pres. Fundamentally, the doctrine exists to save a charitable trust from failure while
preserving the settlor's original, charitable intent. Restatement 3d § 67, cmt. b. Thus where
both the primary and alternative charitable distributions are impracticable, courts may
presume that the settlor would have intended one or both purposes to survive under
application of cy pres.
Here, the deeds provide that if the first purpose—an educational nature preserve
operated by HHS—fails, the property passes to the State “for and as a public park.” This
secondary purpose, however, is likewise impracticable. The DLNR determined that the land
was unsuitable for use as a public park, and that only a portion of the land could be used as a
forest preserve and watershed. Thus, the Legislature approved the proposed land exchange,
and the State filed a joinder in HHS's Petition. Redirecting the land to the State would not
effectuate Mrs. Lucas's charitable intent. Rather, it would result in the failure of the trust. As
in Burr, both the primary and alternative purposes of the gift are impracticable, as the land
cannot feasibly be used for either purpose. Burr, 30 Ill. Dec. 744, 393 N.E.2d at 1095. The
Probate Court therefore erred in concluding that the gift over rule precludes application of cy
pres.
HHS, Tiana Partners, and the State request this court to remand the case with
instructions to apply cy pres to approve the proposed land exchange free and clear of the use
restrictions. We agree that cy pres so applies in this case.
As discussed above, cy pres applies where: (1) property is given in trust for a charitable
purpose; (2) it is impracticable to carry out the specified charitable purpose; and (3) the
settlor manifested a general intent to devote the property to charitable purposes. Supra part
IV(A). Here, those elements are met. Mrs. Lucas conveyed the land to HHS for charitable
purposes for the use and benefit of the public. The parties do not dispute, and the evidence
readily establishes, that Mrs. Lucas's specified purposes for the land are both impracticable.
The conveyance also satisfies the traditional requirement of general charitable intent.
In determining whether the settlor possessed a general charitable intent, courts consider the
language of the instrument, the nature and duration of the gift, the character of the recipient
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organization, the presence or absence of a reversionary clause, and the mode for effectuating
the gift. Am.Jur.2d § 154. Courts may also consider extrinsic evidence of the settlor's
probable intent. Am.Jur. Proof of Facts 3d § 20; accord Bogert on Trusts § 437, at 160-73. If the
settlor intended the gift to “be continued within the limits of its general purpose” rather than
cease upon the failure of its specific purpose, this constitutes a general intent. Obermeyer, 140
S.W.3d at 24. Gifts in support of educational goals often demonstrate a general charitable
intent because there is a perpetual need and use for them. Id.; accord Bogert on Trusts § 436, at
157.
In this case, the deeds convey the land “for and as a charitable gift” for the purpose
of educating the public. They specify an alternative means of achieving the charitable
purpose in the event the first method fails. The deeds thus confirm that Mrs. Lucas did not
intend the trust to fail should use of the land become impracticable. See Bogert on Trusts § 437,
at 165-70 (gift over to another charitable purpose confirms general charitable intent); accord
Scott on Trusts § 39.5.2, at 2713; First Nat’l Bank of Chicago, 92 N.E.2d at 74. The declaration of
Mrs. Lucas's daughter, evidencing Mrs. Lucas's probable wishes regarding the property had
she been alive, further supports a general charitable intent.
Finally, the proposed land exchange closely conforms to Mrs. Lucas's original
purpose. The deed restriction contemplates a nature preserve to function “as an educational
experience for the public.” Mrs. Lucas's daughter attested that her mother intended to
generally benefit the people of Hawai‘i by enabling HHS to provide “an educational
experience for the public.” The Educational Fund preserves those goals by promoting
educational programming that focuses on the natural environment. This use of the funds
also comports with Mrs. Lucas's lifelong interest and involvement with HHS. It
accomplishes her probable wishes regarding the use of the land had she been aware of the
obstacles preventing its development. Unlike in Burr v. Brooks, the interested parties all agree
that the proposed land exchange effectuates Mrs. Lucas's charitable intent as nearly as
possible. Cf. Burr, 30 Ill. Dec. 744, 393 N.E.2d at 1095. This unanimous accord further
supports applying cy pres to approve the transaction. See Restatement 2d 399, cmt. f; Bogert on
Trusts § 442, at 258 (recognizing that wishes of trustees, beneficiaries, attorney general, and
other interested parties warrant consideration). There is no evidence, either extrinsic or in
the deeds themselves, to support a contrary conclusion.
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V. CONCLUSION
For these reasons, we conclude that the Probate Court erred in concluding that cy
pres is not applicable to approve the proposed transaction on the basis that the deeds provide
for an alternative distribution. Accordingly, we vacate the Judgment and remand to the
Probate Court to apply cy pres consistent with this Opinion.
Class Discussion Tool One
Aaron’s will contains the following provision:
“The rest, residue and remainder of my estate, real, personal, intangible and
mixed, of whatsoever kind and wherever situated I leave in trust to my wife
Diane for her life. After Diane dies, the funds in the trust are to go to State
Bank in trust to be used to send five members of my church choir a year to
the Oak River Wellness Center. The trustee is to use the annual net income
of the trust property to fund the trips, and has the discretion to select the five
members. The trustee must select the five members by May 1st of each year.
The trust is to continue until the death of Pastor Ben Franklin and
Choirmaster Joy Williams. Then, the trust corpus is to be divided between
any of my living blood descendants.”
After Diane died, the trustee started following the terms of the trust. A few years
later, the church choir decided to go in another direction, so the church discharged Williams.
The church hired Kirk, Pastor’s Franklin’s son. Kirk recruited younger members. Thus, the
average age of the choir went from 58 to 24. Given the youngness of the choir and the
congregation, Kirk decided to start performing hip hop gospel music. He added other
instruments, including drums and cymbals, to accompany the piano and organ.
During a storm, the roof of the church started leaking. As a result, the church’s
piano and organ were damaged. The church does not have the money to replace the
equipment. The members of the church believe that, in order to make a joyful noise unto the
Lord, they need music. Therefore, they refuse to continue performing without music. The
choir requested that the trustee use some of the annual trust income to purchase new
musical equipment.

235

The town of Play, located 45 minutes away from the church, recently opened up a
new age spa. Oak River is a resort town located four hours away from where the church is
located. The members of the choir asked the trustee to send members to the new spa instead
of the wellness center. It would be cheaper to go to the new spa than the wellness center, so
more than five choir members would be able to attend.
Pastor Franklin was injured in a car accident and is in a coma. It is unclear when, or
if, he will regain consciousness. He is not brain dead.
The trustee would like to know what he should do. Please analyze all of the relevant
legal issues.
Class Discussion Tool Two
Judy was a practicing vampire priestess. During her lifetime, she spent a great deal of
money supporting activities sponsored by members of the local vampire temple. Judy
believed that vampires had evolved and were able to live normal lives. As a consequence,
Judy and the members of the temple believed that modern vampires could walk in sun light
without being injured. The members of the temple also believed that, although vampires
were immortal, they aged. In her will, Judy created the following trust. “I leave one million
dollars in trust to the town of Bloodville in order for them to build a retirement home for
aging vampires.”
After Judy died, the City Council of Bloodville accepted the trust funds. At that time,
the vampire temple had been destroyed by fire and most of the practicing vampires had left
the area. The City Council voted to use the million dollars in the trust to build an apartment
complex for low-income senior citizens who lived in the town.
After the apartment complex was partially built, the executor of Judy’s estate sued to
get an injunction to prevent the City Council from using the trust money to build the
apartment complex. What result?

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Chapter 8 Supervision/Enforcement of
Charitable Trusts
The charitable trust is considered to be a public trust. Instead of the beneficiary of
the trust being a specific ascertainable person, the trust must be meant to benefit a particular
organization or class of persons. Since a charitable trust is a public trust, unlike the case
involving a private trust, the beneficiary of the charitable trust does not have standing to
force the trustee to live up to his fiduciary duties. The state attorney general or another
government official has the authority to enforce the provisions of a charitable trust. Unless
the trust provides otherwise, the donor does not have authority to enforce the charitable
trust.

8.1

Donor Standing

Russell v. Yale University, 737 A.2d 941
LAVERY, J.
The plaintiffs, an heir of the settlor of a charitable trust, alumni donors and students
of the named defendant, Yale University (Yale), appeal from the judgment of dismissal
rendered by the trial court in granting the Yale's motion to dismiss, which asserted that the
trial court lacked subject matter jurisdiction on the ground that the plaintiffs lacked standing.
On appeal, the plaintiffs claim that the trial court improperly granted Yale's motion to
dismiss because, where the attorney general elects not to participate in a proceeding
involving a charitable trust, a person with a “special interest” may appear on behalf of the
trust to protect the interests of the beneficiaries and that the plaintiff heir, alumni donors
and students have the special interest necessary to confer standing on them. We affirm the
judgment of the trial court.
The following facts are necessary for our resolution of this appeal. Yale is a
nonprofit corporation organized pursuant to a 1745 charter, which was reconfirmed in
article eighth, § 3, of the constitution of Connecticut in 1965. The settlor, John W. Sterling,
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died in 1918. At that time, he left, in trust, money for the erection of a building or buildings
that would constitute a fitting memorial reflecting his gratitude and affection for his alma
mater, Yale. The trustees were given broad discretion in the disposition of these funds and
directed, if their discretion made it advisable, to consult with Sterling's sisters with regard to
the use of the funds. The will directed that the money not be used for the purchase of land
or as part of Yale's general fund. In 1930, the Sterling trustees voted to contribute money for
the erection and maintenance of the divinity school quadrangle that bears Sterling's name.
No other restrictions existed in the will and no property rights were reserved for Sterling's
heirs by the will.
The divinity school is one of Yale's graduate professional schools, which educates
men and women for the Christian ministry and provides theological education for persons
engaged in other professions. Prior to the commencement of this action, the president of
Yale appointed a committee to undertake a comprehensive study of the divinity school and
its future. In late 1996, the Fellows of the Yale Corporation approved certain
recommendations, as made to them by the president and dean of the divinity school, calling
for the reorganization of the divinity school, including the demolition of large portions of
the Sterling Divinity Quadrangle.
The plaintiffs took exception to the reorganization and instituted this action seeking
a temporary and permanent injunction enjoining Yale from carrying out the reorganization, a
declaratory judgment that Yale's reorganization plan constitutes an abuse of discretion as a
trustee of a public charitable trust, and an accounting of all gifts and donations Yale received
for the benefit of the divinity school and of charges against the divinity school's endowment.
Yale moved to dismiss the complaint on the ground that the plaintiffs lack standing to bring
suit. The trial court granted the motion to dismiss and the plaintiffs appealed. Additional
facts will be addressed as necessary.
“It is a basic principle of our law ... that the plaintiffs must have standing in order for
a court to have jurisdiction to render a declaratory judgment.... A party pursuing declaratory
relief must ... demonstrate, as in ordinary actions, a justiciable right in the controversy sought
to be resolved, that is, contract, property or personal rights ... as such will be affected by the
[court's] decision.... When standing is put in issue, the question is whether the person whose
standing is challenged is a proper party to request an adjudication of the issue and not
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whether the controversy is otherwise justiciable, or whether, on the merits, the plaintiff has a
legally protected interest that the defendant's action has invaded....
“Standing is established by showing that the party claiming it is authorized by statute
to bring suit or is classically aggrieved.... The fundamental test for determining aggrievement
encompasses a well-settled twofold determination: first, the party claiming aggrievement
must successfully demonstrate a specific, personal and legal interest in [the challenged
action], as distinguished from a general interest, such as is the concern of all members of the
community as a whole. Second, the party claiming aggrievement must successfully establish
that this specific personal and legal interest has been specially and injuriously affected by the
[challenged action].... The determination of aggrievement presents a question of fact for the
trial court and a plaintiff has the burden of proving that fact.... The conclusions reached by
the trial court cannot be disturbed on appeal unless the subordinate facts do not support
them.... Where a plaintiff lacks standing to sue, the court is without subject matter
jurisdiction.” (Citations omitted; internal quotation marks omitted.) Steeneck v. Univeristy of
Bridgeport, 235 Conn. 572, 578-80, 668 A.2d 688 (1995).
“A motion to dismiss admits all facts well pleaded and invokes any record that
accompanies the motion, including supporting affidavits that contain undisputed facts Barde
v. Board of Trustees, 207 Conn. 59, 63, 539 a.2d (1988).. A motion to dismiss raises the
question of whether a jurisdictional flaw is apparent on the record or by way of supporting
affidavits. Bradley’s Appeal from Probate, 19 Conn. App. 456, 461-62, 563 A.2d 1358 (1989).”
Carl J. Herzog Foundation Inc. v. University of Bridgeport, 41 Conn. App. 790, 793, 677 A.2d 1378
(1996), rev'd on other grounds, 243 Conn. L. 699 A.2d 995 (1997).
Although Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 243 Conn. 1, 699
A.2d 995 (1997) concerns the interpretation of a statute, in that case, our Supreme Court set
out, at length, the common-law rule with regard to standing to bring suit against a charitable
entity, which controls the issues here. “At common law, a donor who has made a completed
charitable contribution, whether as an absolute gift or in trust, had no standing to bring an
action to enforce the terms of his or her gift or trust unless he or she had expressly reserved
the right to do so. Where property is given to a charitable corporation and it is directed by
the terms of the gift to devote the property to a particular one of its purposes, it is under a
duty, enforceable at the suit of the [a]ttorney [g]eneral, to devote the property to that purpose.... At
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common law, it was established that [e]quity will afford protection to a donor to a charitable
corporation in that the [a]ttorney [g]eneral may maintain a suit to compel the property to be held
for the charitable purpose for which it was given to the corporation.... The general rule is
that charitable trusts or gifts to charitable corporations for stated purposes are [enforceable]
at the instance of the [a]ttorney [g]eneral.... It matters not whether the gift is absolute or in
trust or whether a technical condition is attached to the gift.” (Citations omitted; emphasis in
original; internal quotation marks omitted.) Id., at 5-7, 699 A.2d 995; see also 4A A. Scott,
Trusts (4th Ed. Fratcher 1989) §3481.
“[T]he donor himself has no standing to enforce the terms of his gift when he has
not retained a specific right to control the property, such as a right of reverter, after
relinquishing physical possession of it.... As a matter of common law, when a settlor of a
trust or a donor of property to a charity fails specifically to provide for a reservation of rights
in the trust or gift instrument, neither the donor nor his heirs have any standing in court in a
proceeding to compel the proper execution of the trust, except as relators.... There is no
such thing as a resulting trust with respect to a charity.... Where the donor has effectually
passed out of himself all interest in the fund devoted to a charity, neither he nor those
claiming under him have any standing in a court of equity as to its disposition and control.”
(Citations omitted; internal quotation marks omitted.) Car J. Herzog Foundation, Inc. v.
University of Bridgeport, 243 Conn. at 7-8, 699 A.2d 995.
The trial court found the facts noted previously in this opinion and concluded that if
Sterling were alive today, he would have no right to enforce conditions of his gift, and that,
therefore, his heir and successor lacks standing to bring this suit, as well. We agree. See id. at
5-6, 699 A.2d 995.
For the same reasons, the trial court also concluded that the plaintiff alumni donors
also lack standing as contributors of unrestricted charitable gifts to their alma mater and
nothing about the fact that they are graduates of the divinity school gives them standing. We
agree with that conclusion as well. See id.
With regard to the third group of plaintiffs, the students, the trial court determined
that they also lack standing. We agree with the trial court and hold that, absent special injury
to a student or his or her fundamental rights, students do not have standing to challenge the
manner in which the administration manages an institution of higher education. See Trustees of
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Dartmouth College v. Woodward, 17 U.S. 518, 641, 4 L.Ed. 629 (1919), Miller v. Alderhold, 228
Ga. 65, 184 S.E.2d 172 (1971). The plaintiff students lack standing because they alleged no
injuries to themselves or to any of their fundamental rights, collectively or individually.
We hold, therefore, that the trial court properly concluded that, although the
plaintiffs are sincere in their efforts to maintain the divinity school as a leader in theological
education and preparation for the Christian ministry and they acted in good faith based on
motives that are beyond question, the plaintiffs, as a matter of law, lack standing to
adjudicate the equitable remedies they seek.
The judgment is affirmed.

Hatdt v. Vitae Foundation, 302 S.W.3d 133
KAREN KING MITCHELL, Judge.
Edwin Hardt and Karl Hardt (“the Hardts”) appeal from the circuit court's judgment
dismissing for lack of standing their petition to enforce their charitable gift and the
conditions thereon to the Vitae Foundation, Inc. (“Vitae”). We affirm.
Factual and Procedural Background
Appellants Edwin Hardt and Karl Hardt are executors of the estate of Selma J.
Hartke. Pursuant to Ms. Hartke's will, they were given discretion to distribute the remainder
of her estate to charitable organizations of their choosing. The Hardts determined to use a
large portion of the estate to support the pro-life cause. In January 2001, the Hardts
requested a meeting with Vitae, a non-profit charitable corporation describing itself as an
“advertising campaign for life ... [that] research[es], produce[s] and purchase [s] airtime in an
effort to encourage a greater respect for human life, restore traditional values in our
American culture, and reduce the number of abortions by using mass media education.” The
Hardts requested that Vitae submit a proposal for a possible grant.
In March 2001, the Hardts met with Sandra Faucher, Vitae's then-National Project
Director, and Vitae's President Carl Landwehr. Vitae presented a grant proposal to the
Hardts at that meeting, which focused on ten of the top twenty-five media markets in the
United States. The proposal stated that Vitae planned to air media campaigns in all twentyfive media markets by 2003 but that Vitae lacked the funding to effectuate this goal in the
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ten markets contained in the proposal. Vitae stated that airing media campaigns in all of the
top twenty-five markets was vitally important because television advertising was the most
effective way of reaching women most vulnerable to abortions. The proposal set out a dollar
figure for funds needed in each of the ten markets in order to fulfill Vitae's goals of airing
media campaigns there. To illustrate why the Hardts' gift was needed, the proposal also
contained a brief description of each market's importance, the type of broadcast to be used,
the relative cost of broadcasting there, and the current status of local financial support.
Ms. Faucher suggested at the March 2001 meeting that any gift from the Hardts be
used as a “matching gift,” to be spent in equal proportions to funds raised by Vitae in each
of the ten markets. By utilizing this 50/50 matching concept, the grant would entice other
donations in the various markets to ensure a lasting donor base for future media campaigns.
On March 9, 2001, following the meeting and proposal, the Hardts granted to Vitae
$4,242,000 (“2001 gift”), the total amount identified in the proposal as needed to air media
campaigns to the ten specified markets. A letter of intent accompanied the grant to Vitae,
which stated the grant was given:
to permit the development of Florida, Oregon, Ohio, Maryland, Texas,
Arizona, and Washington and Generation Y in San Francisco and Los
Angeles as set forth in the proposal prepared for Ed Hardt dated March
2001. It is their understanding that the Foundation will use these funds as a
challenge gift so that the funds will not be fully consumed in the initial media
campaign but will be the basis for establishing an ongoing presence in these
markets.
On March 12, 2001, receipt of the gift was acknowledged and the letter of intent was
signed by Landwehr as “agree[ing] to the terms and conditions of the gift.”
In November of 2002, the Hardts granted an additional $4,000,000 from the estate
to Vitae (“2002 gift”). Of this gift, $3,000,000 was to be used as matching funds for media
campaigns in markets of Vitae's choosing. The additional $1,000,000 was to be used by Vitae
for the continued development of a website aimed at teens without mention of matching
funds. This additional $1,000,000 is not at issue in this suit.
In August of 2003, Ms. Faucher contacted the Hardts' counsel and informed him
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that some portions of the Hardts' grant to Vitae were not being used in accordance with the
conditions placed on the gifts but, instead, were being expended for administrative expenses,
including the hiring of significant new staff members, and were being spent without the
receipt of matching funds. She also told the Hardts' counsel that Vitae's promised expansion
of media campaigns in new markets was not occurring.
On September 8, 2003, the Hardts requested an accounting from Vitae with respect
to both gifts. On September 26, 2003, Landwehr sent a letter to the Hardts indicating that
subsequent to their gifts, Vitae had adopted a new development strategy. The Hardts later
learned that little money was being used for media campaigns at all.
On January 13, 2004, Landwehr sent a letter to the Hardts describing a “radically
different” development strategy that he had implemented subsequent to the Hardts' gifts.
The new strategy “scaled back” Vitae's plans to enter additional media markets and, instead,
focused on building relationships with “high level influential leaders” in the various markets
and building an “operational support team” to assist with new fundraising.
The Hardts claim that the last accounting provided to them by Vitae, dated June 30,
2005, evidences extensive misuse of the 2001 gift as:
(a) nearly half of the funds expended have been spent on administrative expenses,
in fact, in multiple markets no media expenditures have been made whatsoever,
(b) the gift has been spent in the absence of the receipt of matching funds, and (c)
funds have been spent in markets not part of the terms of the 2001 gift.
The Hardts also claim that they have not received sufficient information from Vitae
to ascertain whether Vitae has fully complied with its restrictions in regard to the 2002 gift.
On August 6, 2008, the Hardts filed a petition in the Cole County Circuit Court
seeking: (a) a detailed accounting of both the 2001 and 2002 gifts, (b) the restoration of any
part of either gift spent in contravention of conditions placed on the gifts, (c) an injunction
preventing any future expenditure of funds from either gift in any manner inconsistent with
the applicable conditions, or (d) in the alternative, the transfer of the 2001 gift to another
charitable organization of the Hardts' choosing.
On September 22, 2008, Vitae filed a motion to dismiss the Hardts' petition. The
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motion was heard by the trial court on November 25, 2008. On December 5, 2008, the trial
court granted the motion to dismiss and held that the Hardts lacked standing to bring their
claims.
Standard of Review
When reviewing the trial court's granting of a motion to dismiss, “we engage in an
essentially de novo review of an issue of law.” In re Swearingen, 42 S.W.3d 741, 745 (Mo. App.
W.D. 2001) (internal quotation marks omitted). We assume all of the facts alleged in the
plaintiffs' petition are true. Id. However, “it is not enough that the plaintiff alleges a cause of
action existing in favor of someone; he must show that it exists in favor of himself, and that
it accrued to him in the capacity in which he sues.” Voelker v. Saint Louis Mercantile Library
Ass’n, 359 S.W.2d 689, 693 (Mo. 1962) (internal quotation marks omitted).
Legal Analysis
At common law, only the Attorney General had standing to enforce the terms of a
charitable gift. Id. at 695. This rule applied to gifts both to charitable trusts and charitable
corporations and was made primarily to prevent potential beneficiaries without a “special
interest” in the gift from “vex [ing]” public charities with “frequent suits, possibly based on
an inadequate investigation.” Id. Since the Attorney General represents the public at large, he
can enforce the terms of the charitable donation on behalf of all of the beneficiaries, which
for public charities means the general public.
Donors were also prevented from enforcing their gifts in court, because non-trustee
donors retained no interest in the gift, “except the sentimental one that every person who
contributed” to the charity would be presumed to have. Id. at 694.. Accordingly, the donor
was left with no ability to make sure the charitable organization used the gift according to
the gift's terms and conditions.
An exception to this rule existed, however, when the donor specifically made the
charitable gift subject to a condition subsequent to the donation. In these cases, if the
charitable trust or charitable corporation failed to perform the specified act, the gift would
revert back to the donor or to a designated third party. L.B. Research & Educ. Found v. UCLA
Found, 130 Cal.App. 4th 171, 29 Cal.Rptr.3d 710, 713 (2005). The donor of such a gift had
standing to enforce the conditions placed on the gift because it retained an interest in the
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property. Id. at 714. The parties agree that this exception does not apply in this case.
Recently, there has been a trend in the law to give donors more control over the
enforcement of the terms of their charitable gifts. In 2005, Missouri adopted the Uniform
Trust Code (“MUTC”). This law specifically granted settlors of charitable trusts the ability to
“maintain a proceeding to enforce the trust.” § 456.4-403.3 RSMo. The law was also made
retroactive to apply to trusts created before its enactment. 456.11-1106 RSMo The law, on
its face, clearly applies only to trusts.
The Hardts do not claim that their gift was made in trust, constructive or otherwise.
They simply contend that the MUTC also applies to gifts made, absent a trust, to charitable
corporations. To support this contention, they cite Voelker, a case from 1962. In Voelker, the
court specifically held that only the Attorney General had standing to sue but did remark
that “many of the principles applicable to charitable trusts are applicable to charitable
corporations.” 359 S.W.2d at 694. (internal quotation marks omitted).
The Hardts argue that because common law charitable trust principles have often
applied to charitable corporations, newly enacted statutes addressing only charitable trusts
must also apply to charitable corporations. The extension of common law charitable trust
principles to gifts to charitable corporations is not enough to authorize this court's extension
of the MUTC, a statutory provision that on its face applies only to charitable trusts, to gifts
made outright to charitable corporations.
Where the language of a statute is clear and unambiguous, there is no room for
construction. In re Brams Trust #2 v. Haydon, 266 S.W.3d 307, 312 (Mo. App. W.D. 2008).. If
a term is defined within a statute, a court must give effect to the legislature's definition. Jones
v. Dir. of Revenue, 832 S.W.2d 516, 517 (Mo. Banc. 1992). Not only does the MUTC grant
only the settlor of a charitable trust the right to maintain an action to enforce conditions of a
trust, it also defines “charitable trust” and “settlor.” A “charitable trust” is “a trust, or
portion of a trust, created for a charitable purpose,” and a “settlor” is “a person, including a
testator, who creates, or contributes property to, a trust.” See §456.1-103 RSMo. As such, the
MUTC is limited by its unambiguous terms to charitable trusts, and this court lacks the
authority to apply common law precedent to construe the legislation in a manner that is
inconsistent with the express language of the MUTC.

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Moreover, just this year, Missouri adopted the Uniform Prudent Management of
Institutional Funds Act (“UPMIFA”), which expressly applies to both charitable trusts and
nonprofit corporations. This law grants charitable organizations more discretion than they
may have had under the common law to make prudent investment decisions regarding
charitable funds and endowments. While the UPMIFA stresses that charitable fund
managers give primary consideration to the donor's intent as expressed in the gift
instrument, it does not expressly grant the donor standing to enforce this intent as the
MUTC does in the case of charitable trusts. On the contrary, the prefatory note explicitly
acknowledges that “the [A]ttorney [G]eneral continues to be the protector both of the donor's
intent and of the public's interest in charitable funds.” National Conference of
Commissioners on Uniform State Laws, Preferatory Note, Uniform Prudent Management of
Institutional Funds Act, at 4 (2006) (emphasis added). The UPMIFA is retroactive and does,
therefore, apply to the Hardts' gifts. Thus, the two statutory schemes are inconsistent with
respect to the enforcement of donor intent. A comment to the UPMIFA specifically
acknowledges this possibility, stating, “[t]rust precedents have routinely been found to be
helpful but not binding authority in corporate cases.” In fact, the drafters of the UPMIFA
reportedly considered an amendment granting standing to donors, and yet the amendment is
absent from the final version adopted by the drafting committee. See Marion R. Freemont–
Smith, The Search for Greater Accountability of Nonprofit Organizations: Recent Legal Development and
Proposals for Change, 76 Fordham L.Rev. 609, 621-22 (2007). For these reasons we find no
statutory authority granting standing to the Hardts to enforce the restrictions of their gift.
The Hardts' second argument is that even if there is no statutory authority giving
them standing to sue, Missouri should follow New York, which recently expanded the
common law to allow donors to sue to enforce the terms of charitable gifts. In Smithers v. St.
Luke’s-Roosevelt Hospital Center, 281 A.D.2d 127, 123 N.Y.S2d 426, 427 (N.Y. App. Div.
2001), a man made a charitable gift to a hospital over the span of many years. His gift was
subject to many restrictions on how the money could be spent, and the hospital expressly
agreed to his restrictions. Id. at 428. The donor kept a close watch on the hospital's actions,
withholding future installments of the gift until he was satisfied that the hospital was
complying with his wishes. Id. at 427-28.
Years after the gift was complete, the donor passed away. His widow became
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concerned that the hospital was not using the charitable gift pursuant to the restrictions. She
notified the Attorney General, who became involved with the enforcement of the
restrictions. Id. at 429. Not satisfied with the vigilance of the Attorney General, the widow
sued to enforce the restrictions. Id. at 430-31. The court noted that New York statutes rested
standing to enforce restrictions with the Attorney General. This was true for both charitable
trusts and absolute gifts. Id. However, the court found that the common law granted the
donor standing as well, stating, “[t]he donor of a charitable gift is in a better position than
the Attorney General to be vigilant and, if he or she is so inclined, to enforce his or her own
intent.” Id. at 434. There was a vigorous dissent, which argued that the majority
impermissibly expanded the common law. Id. at 440.
Arguing that “public policy” favors granting donors standing to enforce restrictions
on charitable gifts, the Hardts urge this court to follow New York's example. They claim that
the donor's interest is distinct from that of the Attorney General and hint that the Attorney
General might not be vigilant or might even have a conflict of interest in enforcing the
restrictions of the gift. This argument is not persuasive. In this case, unlike in Smithers, there
is no indication in the record that the Attorney General was even notified of Vitae's failure
to comply with the conditions. The Hardts apparently did not attempt to involve the
Attorney General in the matter, taking it directly to court based upon their own interests.
While it is conceivable that there may be times when the Attorney General does not
sufficiently represent a donor's interest, it has not been shown to be the case here, and we
find no reason to expand the common law to give standing to the Hardts. Indeed, in light of
the legislature's passage of the UPMIFA, it would not be appropriate for us to do so.
Finally, the Hardts claim that the trial court erred in dismissing their action because
the cy pres doctrine could be used to transfer their gift to another charity that will act
consistent with the conditions they placed on the gift. The trial court's order stated that
“Missouri law is clear that the cy pres doctrine applies only to trusts.” This is a misstatement
of Missouri law. Obermeyer plainly states, “[w]hile acknowledging the historical limitation of
the cy pres doctrine to trusts, the doctrine is appropriate in certain cases involving gifts to
charitable corporations.” 140 S.W.3d at 23. The Obermeyer court then goes on to apply the
doctrine to facilitate the completion of a charitable gift. Id. at 24-27.
Despite the trial court's misreading of Obermeyer we do not find the doctrine of cy
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pres applicable to this case. Cy pres “is based on the concern of equity to protect and
preserve charitable bequests.” Id. at 22. Cy pres means “as near as possible” to the intent of
the donor and is used to prevent, if possible, charitable gifts from failing. Id. at 23. The
Obermeyer case is typical of those to which cy pres applies. In that case, a donor left a portion
of his estate to his nieces and nephews for the duration of their lives, with the residue to go
to a particular fund at the dental school of Washington University. Id. at 20. By the time the
nieces and nephews were all deceased, neither the fund nor the dental school was in
existence. Id. The court found, looking to both the gift instrument and extrinsic evidence,
that the donor had the general donative intent to give the money to Washington University
to be used for the support of dental education and so allowed the gift to be completed to the
University.
This case is nothing like Obermeyer or any other case the Hardts cite using or
considering the cy pres doctrine. Here, the gift was completed. The donee did not cease to
exist. There was not a substantial separation of time between the granting of the gift and its
completion. The Hardts simply feel that Vitae is not using the gift pursuant to the
restrictions imposed when the gift was given. Accordingly, cy pres is not applicable.
Furthermore, if cy pres were appropriate, the Hardts would still face their standing challenge.
Assuming the Hardts' gift to Vitae is subject to legitimate, enforceable restrictions
and that Vitae is not using the gift appropriately pursuant to those restrictions, the Hardts'
course of action should be to notify the Attorney General and to ask him to enforce the
restrictions. Therefore, and for all of the above reasons, we affirm the judgment of the trial
court.

8.2

Beneficiary Standing

Warren v. Board of Regents of the University System of Georgia, 544 S.E. 2d 190
MILLER, Judge.
Plaintiff-appellants Carl S. Warren and Earl Davis contributed money to a charitable
trust establishing the Herbert E. Miller Chair in Financial Accounting, an endowed chair in
the Terry College of Business at the University of Georgia. They subsequently sued the
Board of Regents of the University System of Georgia, the University of Georgia
Foundation, and Russell Barefield as the Director of the J.M. Tull School of Accounting at
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the University of Georgia, alleging a breach of fiduciary duty under the terms of the trust. In
essence, plaintiffs claimed the Miller Chair was harmed when Barefield, allegedly ignoring
both appointment criteria under the trust and university hiring procedures, named an
unqualified, non-certified Public Accountant personal friend as the first holder of the Miller
Chair in Financial Accounting and caused more than $135,000 to be improperly paid to that
holder between **192 1992 until his resignation in 1996. Plaintiffs prayed for an accounting,
the return to the trust of all money paid to the chairholder, and the disqualification of
Barefield as administrator or trustee.
Defendants admitted the chronology while denying the material allegations regarding
breach of fiduciary duty and immediately moved to dismiss the complaint. The trial court
granted these collective motions, concluding that standing to enforce the terms of the
charitable Miller Trust is granted exclusively to the Attorney General under OCGA § 53-12115. The trial court further determined that there was no just reason for delay and made the
dismissal final under OCGA § 9-11-54(b).
Plaintiffs appealed directly to the Supreme Court of Georgia, which transferred the
case to the Court of Appeals. They contend dismissal was erroneous because they have a
special interest that confers standing to enforce the trust and because the Attorney General
ought to be disqualified. We affirm the dismissal due to lack of standing.
1. Plaintiffs argue that the Attorney General is not the only entity authorized to bring
suit to enforce the terms of a charitable trust where the plaintiffs have a special interest.
It is undisputed that the Miller Trust is a charitable trust, in that it promotes human
civilization through the advancement of education by paying a salary supplement to the
holder of the endowed chair. Since 1952, Georgia law has provided,
[i]n all cases in which the rights of beneficiaries under a charitable trust are
involved, the Attorney General ... shall represent the interests of the
beneficiaries and the interests of this state as parens patriae in all legal matters
pertaining to the administration and disposition of such trust.
Scott's treatise on trusts explains:
It is frequently said in the cases that the Attorney General alone has [the]
power to maintain suits for the enforcement of charitable trusts. This,
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however, is not strictly true. It is clear, for example, that where there are several
trustees, one of them may maintain an action against the others to enforce the
trust or to compel the redress of a breach of trust.
In such a case, or where suit is brought by others to invalidate a charitable trust, the
Attorney General is a necessary party. The language of OCGA § 53-12-115 does not address
“special interests” and does not forbid co-trustees from bringing suit to enforce the
charitable trust. Nor does that Code section expressly make the Attorney General (or district
attorney) the sole or exclusive representative of the beneficiaries. Its mandatory language
clearly makes that officer the primary or presumptive representative and so a necessary party.
We note that the Restatement provides:
A suit can be maintained for the enforcement of the charitable trust by the
Attorney**193 General or other public officer, or by a co-trustee, or by a person
who has a special interest in the enforcement of the charitable trust, but not by
persons who have no special interest or by the settlor or his heirs, personal
representatives or next of kin.
The Restatement is consistent with Georgia law allowing certain individuals who
have a special interest in a charitable trust to maintain an action to enforce its provisions.
Since the General Assembly is presumed to enact legislation with full knowledge of the
existing condition of the law, including decisions by the courts, we conclude that the 1952
act as amended does not make the Attorney General (or district attorney) the exclusive entity
authorized to initiate a suit to enforce a charitable trust, where individuals can demonstrate a
special interest.
2. Nevertheless, we conclude that plaintiffs, either as contributors to the trust or as
faculty members who might be eligible to be named to the Miller Chair, fail to demonstrate
that special interest.
The rule is settled that an individual member of the public has no right, as such, to
maintain a suit to enforce or administer a benevolent or charitable trust. While a person
having a special interest is sometimes permitted to maintain a suit to enforce a charitable
trust, the mere possibility that one may be a beneficiary of a charitable trust does not give
him standing to maintain a suit to enforce the trust. Thus, those who can enjoy the status of
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beneficiaries only when selected by the trustees are generally held to have no right to initiate a suit
for the enforcement of a charitable trust. The reason is that if any third person were
permitted to sue as a matter of right it would ... subject the charity to harassing litigation.
Similarly, the comments to the Restatement confirm that “[t]he mere fact that a
person is a possible beneficiary is not sufficient to entitle him to maintain a suit for the
enforcement of a charitable trust.” To authorize an individual to enforce a charitable trust in
Georgia, the plaintiff must have some pecuniary interest in it or show that she is a
beneficiary or else show in some way she may avail herself of its educational advantages.
A charitable trust for the promotion of education may provide that particular
persons shall be entitled to a preference to benefits under the trust, in which case any such
person can maintain an enforcement suit. But the selection criteria of the trust agreement in
this case do not identify either plaintiff, by name, position, or association, as a member of a
class of potential beneficiaries entitled to a preference. Indeed, the trust specifies that the
“first chairholder will be a new appointee to the University of Georgia faculty,” thus
excluding a current or former faculty member. Plaintiffs have no standing to enforce this
charitable trust by virtue of their positions as faculty members arguably eligible to be selected
by Barefield to hold the Miller Chair.
3. A suit for the enforcement of a charitable trust cannot be maintained by the settlor
or his heirs or personal representative as such. Thus, the fact that they contributed money to
the trust does not confer upon plaintiffs any “special interest” in the enforcement of the
trust that the Attorney General cannot adequately represent. The trial court did not err in
failing to rule that plaintiffs had standing on these bases.
4. The second enumeration contends the Attorney General should be disqualified as
the representative of the beneficiaries because he also represents the Board of Regents. In
our view, this contention is without merit.
Under the Disciplinary Standards of the State Bar of Georgia, the term “client” does
not include a public agency when represented by a full-time public official, such as the
Attorney General. Nothing in the Code of Professional Responsibility prohibits a full-time
public lawyer, representing this State or its agencies, from taking a position adverse to the
State, its agencies or officials, when such action is authorized or required by the Constitution
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or statutes of this State. Moreover, the remedy for a conflict of interest is to involve the
district attorney or appoint a Special Assistant Attorney General. Such conflict certainly
would not mandate that persons with no “special interest” (such as plaintiffs here) be
granted standing to enforce a charitable trust.
Judgment affirmed.
Note-Beneficiaries With Special Interests
A beneficiary who has a special interest has standing to sue to enforce the provisions of a
charitable trust. That person is required to demonstrate that he is entitled to receive a benefit
under the trust that is not available to the general public or to an average beneficiary.
Problems
In which of the following situations might a beneficiary be deemed to have a special interest
in the trust?
a). Garlock left money in trust to build a dental school at a local university. The university
took the money and constructed the dental school. Ten years later, when Joe was in his
second year at the dental school, the university announced that it was closing the dental
school and using the money to open up a nursing school. Does Joe have standing to sue the
university on behalf of the trust?
b). Thelma left money in trust to build a charitable home for low-income senior citizens. The
facility was built and a board of trustee was created to operate it. Twenty-years later, the
Board decided to relocate the home to a new neighborhood. Bertha, a resident of the home,
was upset about the proposed relocation because it would take her far away from her family,
her doctor and her church. Does Bertha have standing to sue the Board on behalf of the
trust?
c). Warren left money in trust to construct a new building for his church. The church took
the money, but instead of erecting a new building the board decided to use the money to
renovate the old building. Claire, a member of the church, suspected that the pastor and the
board were misappropriating the trust money. Does Claire have standing to sue the Board
on behalf of the trust?
e). Gilbert left money in trust to provide scholarships for law students. The dean of the law
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school decided to use the money for faculty writing grants instead of for scholarships.
Clifford, a scholarship recipient, cannot afford to attend law school without the scholarship.
Does Clifford have standing to sue the Board on behalf of the trust?

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Chapter 9 - Treatment of Trust
Property
The most important aspect of the trust is the trust property. The primary purpose
for creating a trust is to provide for the needs of the beneficiaries. That goal cannot be
accomplished if the trust property is destroyed or depleted. The trustee is responsible for
collecting and protecting the trust property. He or she has the legal title to the property and
owes a fiduciary duty to the beneficiary of the trust to preserve the property. In addition, the
trustee has a duty to prudently invest the trust property in order to ensure that the income is
sufficient to meet the needs of the beneficiaries.

9.1

The Duty to Collect and Protect Trust Property
When the testator dies, the testator is legally obligated to obtain possession of the

trust assets from the executor of the estate as soon as it is feasible. After he receives the
property, the trustee is required to examine the property tendered to make sure it
corresponds with the property listed in the trust instrument. In the event there is a problem
with the trust property, the trustee has duty to challenge the executor, including filing a law
suit to make sure that the trust property is restored. For instance, O leaves $400,000 to A in
trust for the benefit of B. After O dies, O’s executor notifies A and B about the existence of
the trust, and delivers the money to A. If A receives $300,000 instead of the $400,000
mentioned in the trust instrument, A has a duty to resolve the discrepancy with O’s
executor. Once the trustee receives the trust property, that person has a duty to protect the
property. The steps the trustee must take to preserve the trust property depend on the
nature of the property. If the property in the trust is a house, the trustee has duty to do
things like keeping the house in good repair and paying the necessary taxes. For trusts that
are funded by money, the trustee has the duty to invest the principle in order to make
enough money, so that the beneficiary receives the necessary income.

9.2 The Duty to Earmark Trust Property and to Not Comingle Trust
Funds
Once the trustee obtains the trust property, he has a duty to earmark the property as
belonging to the trust. For example, if A receives a house to hold in trust for B, A must put
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the trust’s name on the deed instead of his own name. The purpose of this requirement is to
prevent the trust property from being attached by the trustee’s creditors. Thus, the trustee
must make it clear that he owns the house as trustee and not as an individual. The trustee is
not obligated to earmark certain types of securities. If the trustee fails to earmark the trust
property, he is only liable for any losses that result from his failure to earmark. Consider the
following example: O gives A an apartment building to hold in trust to pay the income from
the rents to B for life. A records the deed to the apartment building in his name. A few
years later, the main employer in the area goes out of business, so people leave the area to
find new jobs. As a result, the vacancy rate in the apartment building rises to 90% and the
trust loses substantial revenue. The trustee is not liable for the loss because it was a result of
the general economic conditions in the area. On the other hand, if one of A’s creditor is able
to attach a lien to the property, A would be responsible for any loss that occurs.
The duty to not comingle is similar to the duty to earmark. The trustee must keep
the trust property separate from his own property. Consequently, if O leaves $400,000 in
trust to A for the benefit of B, A cannot legally place that money in A’s bank account.
Instead, A is obligated to place the money in a separate trust account. Nonetheless, A is only
liable for the loss the trust suffers as a result of the comingling. Thus, if A places the money
in his bank account and his creditors are able to get it, A is liable to the trust for the amount
of the loss. Nonetheless, if the trust loses money because the bank goes out of business or
some one steals the fund, the trustee is not responsible for the loss. Litigation over breaches
of the duty not to comingle usually involves individual trustees. Some jurisdictions permit
corporate trustees to comingle trust funds by statute or common law. The rationale behind
this position is to encourage corporate entities to manage small trusts by being able to pool
trust resources.
Earmarking vs. Comingling
The students often confuse violations of the duties to earmark and to not comingle.
The simple way to look at is to focus upon the trustee’s actions. When the trustee fails to
earmark, he treats the trust property like it is his property. Since it is registered or titled in his
name, legally the property does belong to the trustee. However, a trustee who comingles
trust funds acknowledges that the property belongs to the trust. The difficulty lies in
determining which property belongs to the trustee and which property belongs to the trust.
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Problems
In the following cases determine whether the trustee has violated the duty to earmark or the
duty not to comingle.
1. Albert leaves a large number of expensive jewels in trust for the benefit of his children.
The trustee lists the jewels on his homeowner’s insurance policy and stores them in his safe
deposit box.
2. Bernard leaves twenty Arabian horses in trust for the benefit of his children. The trustee
places the horses in the stable with his collection of Arabian horses.
3. Collin leaves an art collection in trust for the benefit of his children. The trustee registers
the art collection in his name.
4. David leaves a million dollars in trust for the benefit of his children. The trustee deposits
the million dollars in his bank account.
5. Ellen leaves a collection of antique cars in trust for the benefit of her children. The trustee
records the titles to the cars in his name.

In re Dommerich’s Will, 74 N.Y.S.2d 569
HECHT, Justice.
This is a motion by trustees made pursuant to Article 79 of the Civil Practice Act for
a judicial settlement of their account. The only question presented is one raised by the
guardian ad litem appointed by the court to protect the interests of the infant beneficiaries.
He objects to the trustees' investment in and holding as part of the trust fund, certain
municipal and United States Treasury bonds in bearer form when registered bonds of the
same issue are available.
It has been stated by leading authorities on trust law that bonds payable to bearer are
a proper investment, and need not be registered. In Scott on Trusts, Vol. 2, Par. 179.3, the
rule is stated as follows:
‘A trustee does not commit a breach of trust by investing trust funds in
bonds payable to bearer, instead of registering the bonds in his name as
trustee. It is arguable, of course, that a trustee should not invest in bonds
payable to bearer and that he should have the bonds registered in his name as
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trustee for the particular estate for which he holds them, since otherwise they
are not earmarked as property of the trust. It would seem, however, that long
established practice permits trustees to invest in bonds payable to bearer.’
The rule is similarly stated in the Restatement of the Law on Trusts at par. 179, p.
458:
‘d. Duty to earmark trust property. Ordinarily it is the duty of the trustee to
earmark trust property as trust property. Thus, title to land acquired by the
trustee as such should be taken and recorded in the name of the trustee as
trustee. Certificates of stock should be issued in the name of the trustee as
trustee. If bonds held in trust are registered, they should be registered in the
name of the trustee as trustee. If a bond is otherwise a proper trust
investment, however, the mere fact that it is payable to bearer does not
render it an improper trust investment, unless the terms of the trust prohibit
holding securities payable to bearer.’
In considering the obligation of a fiduciary to register bonds pursuant to the
provisions of Section 231, Surrogate's Court Act (applicable to testamentary trusts), Mr.
Surrogate Foley in Matter of Erlanger’s Estate, 183 Misc. 607, 49 N.Y.S.2d 819, 820-821 said:
‘Since the enactment in 1916 of the predecessor section of the Code of Civil
Procedure to Section 231, Surrogate's Court Act, and for a period of twentyeight years the practical construction accorded to the terms of the section has
been that a fiduciary was permitted to invest in and retain bearer bonds.
‘By a coincidence, the author of this decision drafted and introduced as a
member of the State Senate the legislative measure which became the
predecessor section of the Code of Civil Procedure referred to above
(Section 2664–a.)
‘The pertinent part of Section 231 reads: ‘Every executor, administrator,
guardian or testamentary trustee shall keep the funds and property received
from the estate of any deceased person separate and distinct from his own
personal fund and property. He shall not invest the same or deposit the same
with any person, association or corporation doing business under the
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banking law or other person or institution, in his own name, but all
transactions had and done by him shall be in his name as such executor,
administrator, guardian or testamentary trustee. Any person violating any of
the provisions of this section shall be guilty of a misdemeanor.’
‘Under these terms a fiduciary is not compelled to register bonds in the name
of the fiduciary of the estate as such. He may retain bearer bonds taken over
at the death of the testator and any fiduciary may invest in new bearer bonds.
‘The section prohibits him from mingling the bearer bonds with his own
property. They must be kept in a safe deposit box or other form of
earmarked custody in the name of the fiduciary of the specific estate as such.
The fiduciary must purchase such bonds in his name as fiduciary. They
cannot be bought in his individual name. Sales likewise are required to be
made in the name of the fiduciary as such.
‘The construction referred to above, which has been uniformly followed by
the Surrogates' Courts, by trustees and their attorneys and by special
guardians, was confirmed by the Legislature in the explanatory note to the
amendment of Section 231 made by Chapter 343 of the Laws of 1939. That
amendment was recommended by the Executive Committee of the
Surrogates' Association of the State of New York. The explanatory note
printed in the legislative bill read: ‘The changes proposed by this amendment
relate only to registered securities. It is not intended to compel the fiduciary
or the depository to register bearer bonds or to prohibit their retention
without registration so long as such bearer bonds are identified, earmarked
and segregated as assets of the estate.’'
The amendment of Section 231 referred to in the above opinion authorized nominee
registration by trustees. Nominee registration was likewise authorized in the case of intervivos trusts by Section 25 of the Personal Property Law, added by L. 1944, C. 215, effective
March 21, 1944.
While there are conflicting decisions at Special Term, New York County, on this
subject, it appears to me that the weight of authority permits retention of bearer bonds by
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trustees. In Cooper v. Illinois Central R.R., First Department 1899, 38 App. Div. 22, 57 N.Y.S.
925, the court affirmed a judgment on the opinion of the referee who held (page 27 of 38
App. Div. page 927 of 57 N.Y.S.):
‘There is no rule that I am aware of that requires a trustee, if trust funds are
invested in such securities, (bearer bonds) to have the securities registered.
The new trustees had the right to have the registration in the name of the
deceased executor canceled. They were not bound to have the bonds reregistered in their own names, but might restore them to their original
negotiability by having them transferred to bearer.’
Matter of Halstead, Surr. Ct. Dutchess County, 44 Misc. 176, 89 N.Y.S. 806, affirmed on
the opinion of the Surrogate in 110 App. Div. 909, 95 N.Y.S. 1131, affirmed Court of
Appeals in 184 N.Y. 563, 76 N.E. 1096, presents a direct holding on the question. In that
case the beneficiaries sought to hold a surviving trustee liable for failing to require that
securities belonging to the trust consisting of unregistered railroad and municipal bonds, be
payable to or registered in the names of the trustees jointly and for failure to examine the
safe deposit box where the securities were kept. The court (page 181 of 44 Misc., page 809
of 89 N.Y.S.) held that it was not negligent of the surviving trustee to permit the bonds to
remain negotiable, nor to purchase others in such form, and stated:
‘It has been urged that the surviving trustee was negligent in permitting the
securities to remain of the same negotiable character as they were at the death of
the testator, and in purchasing other securities without requiring that they be
made payable to or registered in the names of the trustees jointly. The
beneficiaries have failed to show and circumstance which tended to arouse the
suspicion of the surviving trustee or themselves, or that there was the slightest
reason to believe that the safety of the fund was endangered. No American
authority has been cited to sustain this contention, and, in view of the situation
outlined in this case, it was not, in my judgment, negligent for Halstead to permit
the continuance of the methods which the testator had established and assented
to. Wilkinson resided in Poughkeepsie, while Halstead lived in Brooklyn, and,
owing to the circumstances referred to and the situation of the trustees, it would
have been expensive and unusually cumbersome if the fund was so controlled
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that every detail of the administration required the joint action of the trustees.’
The guardian ad litem argues that the decision of the Court of Appeals in Matter of
Union Trust Company (Hoffman Estate) 219 N.Y. 514, 114 N.E. 1057 is authority for his
contention. That case involved mortgage participations, a type of security which, by its very
nature, must be registered in someone's name. The court stated (page 521 of 219 N.Y., page
1059 of 114 N.E.):
‘It is suggested that corporate or municipal bonds in which a trustee is authorized
to invest trust funds may be payable to bearer, and consequently lack any stamp
of ownership by the trust. While this is so of securities payable to bearer, the lack
of any stamp of ownership on such securities arises from the peculiarity of the
investment, and it does not affect the rule in regard to investments that can
properly be made distinctive and bear upon their face evidence of their
ownership.’
However, the question of the right of the trustees to hold bearer bonds was not
before the court. It seems to me, in the light of the court's affirmance in the Halstead case,
supra, that it was referring to all bearer bonds, whether capable of registration or not, as a
peculiar and distinct type of investment which need not be registered, as contrasted with
other types of securities which, by their very nature, have to be put in someone's name, and
consequently must be registered in the name of the trustee as such. Accordingly the
objection of the guardian is overruled. Settle order at which time allowances will be fixed.

9.3

The Duty Not to Delegate
A settlor expects the trustee to administer the trust. The settlor selected the

trustee because the settlor had confidence in that person’s judgment and ability to carry out
the settlor’s instructions. The settlor did not want someone else to manage the trust
property. Thus, traditionally, the trustee was obligated not to delegate his discretionary duties
to a third party. However, it would be too burdensome to force a trustee to personally
perform all acts necessary to administer a trust. Therefore, the trustee may delegate
ministerial duties but not delegate discretionary acts. For instance, the trustee of a
discretionary support trust cannot let a third party make the decision about if and when to
distribute money to the beneficiary. The main duty of a trustee is usually to invest the trust
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property to ensure that there is enough income to pay to the beneficiary. The law recognizes
that the trustee may not have enough expertise to make investment decisions. Therefore, a
trustee who delegates his investment duties to a stockbroker does not breach his duty not to
delegate. In fact, the duty of prudence requires the trustee to delegate such tasks. However,
the trustee is obligated to monitor the activities of the stockbroker. He cannot simply turn
over the management of the trust funds to that person. He has a duty to exercise reasonable
care in selecting and monitoring the person to whom he delegates his trust duties.

9.4

Duty of Prudence
At common law, when dealing with trust funds, the trustee had a duty to exercise

such care and skill as a prudent man would exercise when dealing with his own property.
This was similar to the “reasonable man” standard applicable in tort cases. Thus, the
trustee’s actions were evaluated based upon the totality of the facts. Currently, the trustee
has a duty to invest trust property in a manner consistent to that of a reasonable prudent
investor. The duty of prudence includes the duty to be sensitive to risks and return of
investments, to diversify and to delegate when appropriate. A portfolio may be undiversified
when special circumstances warrant it. The trustee has a duty to diversify unless he decides
that because of special circumstances the purposes of the trust would be better served
without diversifying. The cases in which courts find special circumstances justifying the
failure to diversity are few in number. The special circumstances usually occur when the trust
consists of family property. The trustee must monitor the actions of the person to which the
trustee delegates investment responsibility. The prudent investor standard is based upon the
Uniform Prudent Investor Act and the Restatement (Second) of Trusts. The standard has
been codified in the majority of American jurisdictions.

Estate of Cooper, 913 P2d 393
SWEENEY, Chief Judge.
Washington's prudent investor rule requires a trustee to “exercise the judgment and
care under the circumstances then prevailing, which persons of prudence, discretion and
intelligence exercise in the management of their own affairs....” RCW 11.100.020(1). This
exercise of judgment requires, among other things, “consideration to the role that the
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proposed investment or investment course of action plays within the overall portfolio of
assets.” RCW 11.100.020(1). In this case of first impression, we are asked to decide whether
the prudent investor rule limits the court's consideration to the overall performance of the
trust, or whether, instead, the court may consider the performance of specific assets in the
trust. We hold the prudent investor rule focuses on the performance of the trustee, not the
results of the trust. The trial court here then appropriately considered individual assets, and
groups of assets, in finding that the trustee had improperly weighed trust assets in favor of
himself, the income beneficiary. We affirm that portion of the court's judgment which
required the trustee to reimburse the trust corpus for the loss caused by that investment
strategy.
FACTS
The Estate
De Anne Cooper died on March 6, 1978. In her will, she provided that her one-half
of the community property would be held in trust during her husband Fermore B. Cooper's
lifetime, and that Mr. Cooper and The Old National Bank of Washington (ONB) would
serve as co-trustees of the testamentary trust. The trust required payment of income to Mr.
Cooper and distribution of the corpus to her children after Mr. Cooper's death. The
nonintervention will named Mr. Cooper personal representative. At the time of her death,
Mrs. Cooper had two children, Joyce Johnston and Richard Cooper. Her one-half of the
community property was worth about $800,000.
Mr. Cooper filed his wife's will and started a probate. But he took no further steps to
conclude the probate until Joyce filed this action. He did not keep a separate estate account
and continued to manage all of the former community property as his own.
In 1986, Mr. Cooper asked Joyce to approve the substitution of Richard for ONB as
co-trustee of the trust. Joyce refused and asked about Mr. Cooper's management of the
estate. At that point, Mr. Cooper funded the trust by depositing in ONB assets valued at
approximately $2,000,000. Joyce then petitioned the court to remove Mr. Cooper as personal
representative of the estate and trustee of the trust, and for an accounting and a declaration
that Mr. Cooper's second wife had no interest in the trust property. Her petition included a
request for attorney fees and costs.
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The Inventory
In March 1989, Mr. Cooper filed an inventory of estate assets. The asset mix set out
in that inventory generates the primary dispute in this case. The inventory included (1) an
unsecured note from Gifford-Hill, Inc., with a balance of $1,200,000 owing on the date of
Mrs. Cooper's death; (2) partnership interests in Eight-O-One Investment Company and
Hillside Investment Company, which owned interests in the Deaconess Medical Building;
and (3) substantial holdings in income-producing assets including tax-exempt bonds. The
inventory did not include shares in Comtrex, Inc. Mr. Cooper's son, Richard, was the chief
executive officer of Comtrex. After Mrs. Cooper's death, Mr. Cooper bought shares in the
company and also loaned it approximately $824,000, which Comtrex never repaid.
Before Mr. Cooper compiled the inventory, he had sold the community's share of
stock in a closely held corporation, Western Frontiers. The corporation owned the North
Shore, a hotel and restaurant in Coeur d'Alene. Its shares were valued for estate tax purposes
in 1978 at 75¢ a share, for a total value of $21,750. Mr. Cooper sold both his and the estate's
shares in 1983 to Duane Hagadone at a profit of about $1 million. The stock had appreciated
largely because of a bidding war between Mr. Hagadone and Robert Templin. Both wanted
control of the company. The purchase gave Mr. Hagadone a majority interest. Mr. Cooper
reinvested the proceeds in stocks and bonds.
An accounting filed along with the inventory calculated the current value of Mrs.
Cooper's estate at $1,279,433. Mr. Cooper's accountant compiled the accounting from estate
tax returns and transaction sheets supplied by Mr. Cooper's stockbroker. The accounting
summarized (1) purchases and sales of assets listed in the 1978 estate tax return, (2) capital
gains, and (3) income.
On December 26, 1989, the superior court appointed John Cummins “as special
master/referee to assist [it] in resolving various disputes that [had] arisen in connection with
[the Cooper] estate.” At the time, Mr. Cummins was a vice-president of Seattle-First
National Bank and manager of its trust department. The court asked Mr. Cummins to
contact the trust department of U.S. Bank (ONB's successor) to “review what has transpired
in connection with the assets” deposited by Mr. Cooper in 1987 to fund the trust. The court
also asked Mr. Cooper to forward to Mr. Cummins a copy of the estate accounting. After
consulting with Mr. Cummins, the court found that “the accounting as accomplished to date
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in connection with the trust estate is not in accordance with generally recognized format and
principles.” It then instructed Mr. Cooper's accountant, James McDirmid, “to confer with
Mr. Cummins as to what is contemplated to comply with those standards.”
Mr. Cooper filed a revised inventory accounting in May 1990 based on Mr.
McDirmid's calculations (McDirmid accounting). It set the 1987 fair market value of the
inventoried assets at $1,835,821.50. The value of the assets Mr. Cooper had transferred to
fund the trust in 1987 had a value of $1,959,113. Thus, the trust was overfunded by
$123,291.50. The accounting also valued the partnership interests in Eight-O-One and
Hillside, half of which the estate owned, at $192,000 and $86,000, respectively. These values
reflected a 60 percent discount because Mr. Cooper's interest was a minority interest and
therefore not easily marketable.
Mr. Cummins concluded the amended accounting revealed “no improprieties.” The
court refused Joyce's request to discover the basis for Mr. Cummins' opinions. It stated Mr.
Cummins was appointed “solely for the purpose of deciding whether or not F. Bert Cooper
should be removed as Personal Representative.”
The Litigation
On December 12, 1990, the court directed the parties to proceed to a hearing on the
final report and petition for distribution. At the hearing, the principal issues were the
accuracy of the McDirmid accounting and the propriety of Mr. Cooper's investment strategy.
Mr. Cooper and Joyce presented expert opinion testimony in support of their respective
positions.
The Ruling
On December 15, 1992, following the hearing, the court found Mr. Cooper had
commingled income from estate assets and proceeds from the sale of estate assets with his
own funds. It found the accounting prepared by Mr. Cooper's accountant adequately traced
the estate's assets. The court further found, based on the McDirmid accounting, that Mr.
Cooper “had more than sufficient funds in his own right as his separate property to make
gifts and other distributions to and for the benefit of his children.”
The court agreed with Mr. Cooper's valuation of the Eight-O-One and Hillside
partnerships. And it held he had acted prudently in negotiating the sale of the Western
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Frontiers shares. It found that Mr. Cooper had, however, “maintained a policy of investment
... which maximized the income of the estate ... to the detriment of the growth of the corpus
of the estate.” It valued the loss to the remainder interest at $342,493 as of July 1987. It
ordered Mr. Cooper to contribute that additional amount, along with $115,840 of expected
appreciation from July 1987 to entry of the judgment.
The court also found that Mr. Cooper had overfunded the trust by $123,292. It
credited that sum against the $458,333 surcharge it had levied against Mr. Cooper to
compensate the trust for losses it suffered as a result of his investment strategy ($342,493 +
$115,840). It held estate taxes, attorney and accounting fees, and expenses of administration
were properly charged by Mr. Cooper to the estate. The court set 1984 as the outside date by
which Mr. Cooper should have closed the estate. It then awarded him a fee for serving as
personal representative from 1978 through 1984. It also awarded him a fee as co-trustee
from July 1987 to the date of the judgment. It ordered the trust divided between Richard and
Joyce and discharged Mr. Cooper as the trustee over Joyce's half because of the “mutual
distrust, conflict, and dissension” between Joyce and Mr. Cooper.
The court further found that “[a]ll parties to this cause have succeeded to some
degree herein and have worked for the benefit of the estate and of their respective clients.”
It therefore awarded all parties a portion of their attorney and accountant fees. Joyce
received $45,600 in attorney fees and $12,421.67 for her accountant's fees. The court
awarded Mr. Cooper $46,400 of the $115,000 in attorney fees he had requested, and
$48,802.50 for his accountant's fees. It awarded Richard $18,400 in attorney fees and $220.47
in costs. The court approved Joyce's additional attorney and professional fees of $156,975,
but ordered them charged to her share of the trust.
DISCUSSION
The Appeal
Prudent Investor. The question presented is whether the trial court improperly
applied the prudent investor rule. Mr. Cooper and Richard argue the court should have
evaluated Mr. Cooper's performance based on the performance of the trust as a whole rather
than focusing on specific assets, or groups of assets. They point out that the return on total
trust assets exceeded that of the ONB trust department.
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The trust's favorable performance, as compared to that of the ONB trust
department, was largely due to the gains from Mr. Cooper's sale of the estate's Western
Frontiers stock. The balance of the trust assets were weighted heavily toward current income
rather than capital appreciation. Common stocks represented 13 percent of the trust's
marketable securities; bonds and bond equivalents represented 87 percent. The estate's gain
attributable to increases in the value of the securities was only $226,313. This figure
represented a 22.23 percent return on those investments, or a 2.15 percent increase per year
between 1978 and 1987. Inflation averaged 6 percent a year during that same period. The
purchasing power of these assets decreased then just under 4 percent a year.
Overall trust performance is a factor in evaluating the performance of the trustee.
But it is not by itself controlling. “The court's focus in applying the Prudent Investor
standard is conduct, not the end result.” J. Alan Nelson, The Prudent Person Rule: A Shield for
the Professional Trusts, 45 Baylor L. Rev. 933, 939 (1993). The American version of the prudent
investor rule began with the Harvard College case:
All that can be required of a trustee to invest, is, that he shall conduct himself
faithfully and exercise a sound discretion. He is to observe how men of prudence, discretion,
and intelligence manage their own affairs, not in regard to speculation, but in regard to the
permanent disposition of their funds, considering the probable income, as well as the
probable safety of the capital to be invested.
Nelson, 45 Baylor L. Rev. at 939 (quoting Harvard College v. Amory, 26 Mass. (9 Pick),
446, 460-61 (1830)). In Harvard College, the court recognized that trust assets could never be
fully protected from the uncertainties of the market place; thus, the prudent investor
standard was necessarily flexible. Nelson, 45 Baylor L. Rev. at 938.
In the recent New York case of In re Lincoln First Bank, N.A., 165 Misc.2d 743, 630
N.Y.S.2d 472 (Sur.Ct. 1995), the court interpreted its own version of the prudent investor
rule and made two observations which are helpful here. First, “whether an investment is
prudent or not is a question of fact.” Lincoln First Bank, N.A., 165 630 N.Y.S.2d at 474
(citing In re Clarke’s Estate, 12 N.Y.2d 183, 188 N.E.2d 128, 237 N.Y.S.2d 694 (1962); In re
Yarm, 119 A.D.2d 754, 501 N.Y.S.2d 173 (1986)). Second, the prudent investor standard
requires “that the fiduciary maintain a balance between the rights of income beneficiaries
with those of the remainderman.” Lincoln First Bank, 630 N.Y.S.2d at 474. This state's
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version of the rule also requires that the trustee consider income as well as the safety of the
capital and the requirements of the beneficiaries. RCW 11.100.020(2). Clearly, the focus is on
the trustee's performance, not simply on the net gain or loss to the trust corpus. Nelson, 45
Baylor L. Rev. at 939.
The trial court here properly applied the prudent investor standard, as set forth
above, and its findings of fact on that issue are supported by substantial evidence. Cowiche
Canyon Conservancy v. Bosley, 118 Wash.2d 801, 819, 828 P.2d 549 (1992).
Both parties rely on Baker Boyer Nat’l Bank v. Garver, 43 Wash. App. 673, 719 P.2d
583, review denied, 106 Wash.2d 1017 (1986). There, the trust beneficiaries sued for damages
resulting from imprudent investments made by Baker Boyer, the trustee bank. They argued
the bank had breached a duty to diversify when it invested primarily in fixed-income
securities. The bank responded it had no duty to diversify under the prudent investor rule, as
codified in former RCW 30.24.020 (now RCW 11.100.020.). Even if such a duty existed, the
bank contended diversification between fixed-income securities and equity investment in real
property satisfied the duty under a “total asset” management approach.
The court agreed with the beneficiaries that the prudent investor standard includes
the duty to diversify trust assets. But it found it unnecessary to decide whether former RCW
30.24.020 incorporated the “total asset” approach. The evidence supported the trial court's
finding “the Bank had not weighed the investment in securities against the investment in the
farmland for purposes of diversification.” Baker Boyer, 43 Wash. App. 673, 719 P.2d 583
(emphasis added).
Likewise, Mr. Cooper did not weigh his investment in income-producing securities
against his investment in Western Frontiers. The overall trust performance was boosted
dramatically by the sale of the Western Frontiers stock in 1983. But Mr. Cooper's investment
strategy could not have anticipated the gain from the sale of the stock before it occurred. By
1983, when the stock was sold, he had been administering the estate for five years.
Furthermore, after the sale, he invested the estate assets almost exclusively in marketable
securities, 87 percent in bonds, favoring again the income beneficiary-him. There was no
other asset or group of assets which Mr. Cooper could have balanced against this
investment.

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SUMMARY
In Mr. Cooper's appeal, we affirm the trial court's finding that his management of
the estate's marketable securities breached his duty to act as a prudent investor.

In re Matter of the Stuart Cochran Irrevocable Trust, 901 N.E.2d 1128
BAKER, Chief Judge.
Appellants-petitioners Chanell and Micaela Cochran (the Beneficiaries) appeal the
trial court's order entering final judgment in favor of appellee-respondent KeyBank, N.A.
(KeyBank), on the Beneficiaries' petition seeking an accounting and alleging that KeyBank
had breached its obligations as Trustee. The Beneficiaries argue that the trial court
erroneously concluded that KeyBank did not violate the prudent investor rule and or breach
its duties as trustee. Finding no error, we affirm.
FACTS
On December 28, 1987, Stuart Cochran created an irrevocable trust (the Trust) and
named his two daughters, Chanell and Micaela, as the Beneficiaries. At that time, the
Beneficiaries were two and four years old, respectively. In 1989, Stuart's wife, now Mary Kay
Vance, filed for divorce and was awarded full custody of the children.
Stuart funded the Trust with life insurance policies and was assisted by an insurance
advisor, Art Roberson. Elkhart National Bank was the initial trustee; subsequently, Pinnacle
Bank (Pinnacle) was named as a successor trustee. Pinnacle served as the trustee until 1999.
In January 1999, Pinnacle called Vance and informed her that it no longer wished to serve as
trustee because of Stuart's insistence on having third parties—specifically, himself, his sister,
and Roberson—involved in the trustee's decisionmaking process. Pursuant to the terms of
the Trust, Vance was required to appoint a successor trustee. Vance retained an attorney,
and in January 1999, they met with a KeyBank representative to discuss moving the Trust to
KeyBank. On February 3, 1999, Vance appointed KeyBank as successor trustee.
The 1999 Exchange and the VUL Policies
At approximately the same time she received notice that Pinnacle intended to resign
as trustee, Vance received a call from Roberson, who provided new recommendations
regarding the insurance policies held by the Trust. Specifically, Roberson recommended that
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the three life insurance policies and one annuity then held by the Trust be replaced with two
new life insurance policies—a ManuLife Variable Universal Life policy and an American
General Variable Universal Life policy (collectively, the VUL policies).
At the time KeyBank assumed the duties of successor trustee, the Trust's assets
consisted of three life insurance policies and one annuity and with a collective net death
benefit of $4,753,539.00. As noted above, however, Roberson had recommended an
exchange of policies, replacing these policies with the two VUL policies. When KeyBank
assumed its duties, the underwriting for the exchange of policies had been approved and
Stuart had already submitted to the physical exams. In February and March 1999, KeyBank
approved the transaction and the exchange of policies took place (the 1999 Exchange), with
a new total death benefit of $8 million.
Following September 11, 2001, the stock markets took a dramatic decline. The
downward trend in the markets had an adverse effect on the value of the mutual fund
investments contained in the VUL policies. In fact, in 2001, the policies lost money, meaning
that the cost of insurance and the carriers' administrative charges were greater than the
income generated by the investments; in 2002, the losses were even greater.
The Oswald Review
In the spring of 2003, KeyBank retained Oswald & Company (Oswald), an
independent outside insurance consultant, to audit the VUL policies. At that time, Stuart was
fifty-two years old and the VUL policies had a combined death benefit of $8,007,709.
Therefore, in the trial court's words, “[t]he Oswald review indicated that it was likely
that the two existing policies would lapse before [Stuart] reached his life expectancy of 88
years.” Appellants' App. p. 16. Moreover, because Stuart's “financial fortune had also taken a
negative turn by this point in time, he had no financial wherewithal to supplement the trust
with additional resources or through the purchase of additional policies of life insurance.” Id.
at 17.
As Oswald conducted its review of the VUL policies, Roberson completed his own
review of alternative policies. Roberson eventually proposed to KeyBank that a John
Hancock policy be purchased to replace the two VUL policies. The John Hancock policy
offered a lump sum death benefit of $2,787,624 that was guaranteed to age 100.
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KeyBank requested Oswald to review the John Hancock policy. Representatives of
those companies exchanged some emails, in which an Oswald employee noted that the John
Hancock policy “drastically reduces” the expected death benefit, asking, “[i]s this ... what
[your] client wants to do?” Id. at 318. The KeyBank representative replied in the affirmative,
stating that “[i]t is [Stuart's] intention to reduce his life insurance coverage to the amount
seen on the John Hancock illustrations.” Id. at 317. Oswald reviewed the John Hancock
policy and compared it to the two VUL policies. Id. at 334–35. In an email, an Oswald
employee summarized its conclusion:
We're sure the guarantees in this John Hancock product have a lot of appeal to
[Stuart] given the fact of his substantial investment losses in his current [VUL]
policies.
Given the facts that he is moving to a fixed product with the death benefit
guaranteed to age 100 and $0 future outlay, our recommendation would be to
move forward with the proposed John Hancock coverage if the client is
comfortable with the reduction in death benefit.
Id. at 317.
After reviewing Oswald's analyses of the respective policies and considering the
recommendations contained in the reports, in June 2003, KeyBank decided to retire the
VUL policies and purchase the John Hancock policy in their stead (the 2003 Exchange).
After Stuart underwent a medical exam, John Hancock underwriters rated him as a preferred
risk rather than a super preferred. That classification resulted in the guaranteed benefit being
$2,536,000 rather than $2,787,624. The Oswald employee who had performed the analysis
testified that this change would not have altered Oswald's ultimate recommendation. In
January 2004, Stuart died unexpectedly at the age of 53. The Trust received $2,536,000 in life
insurance proceeds for the Beneficiaries' benefit.
On April 2, 2004, the Beneficiaries filed a petition to docket the Trust and to require
KeyBank to account. On March 7, 2005, KeyBank filed a petition to reform the trust and for
approval of its accounting. The Beneficiaries filed a counterclaim and claim for surcharge,
arguing, among other things, that KeyBank had breached its fiduciary duties as Trustee. A
bench trial was held on August 28–30, 2007, on the issues raised in the Beneficiaries'
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counterclaim and claim for surcharge, with all other issues being reserved for a later time.
On May 29, 2008, the trial court entered findings of fact and conclusions of law, ruling in
KeyBank's favor. Among other things, the trial court concluded as follows:
CONCLUSIONS OF LAW AND ANALYSIS
***
(20) The ultimate question facing this Court is whether the actions of the Trustee,
KeyBank, were consistent with the Settlor's intent as expressed in the Trust document and
met its fiduciary duties to the Beneficiaries. In essence, based on the circumstances facing
the Trust in 2003, was it prudent for the Trustee to move the trust assets from insurance
policies with significant risk and likelihood of ultimate lapse into an insurance policy with a
smaller but guaranteed death benefit? This Court concludes that this conduct was
consistent with the standard established by the prudent investor rule.
(21) KeyBank and its representative acted in good faith to protect the corpus of the Trust
based on the downturn in the stock markets and the prospect that the existing policies
would lapse before the expected life expectancy of the Settlor.
(22) In hindsight, due to the unexpected demise of the Settlor at age 53, KeyBank's
decision resulted in a significant reduction in the death benefit paid to the beneficiaries.
However, from the perspective of the Trustee at the time of its decision, it was prudent to
protect the Trust from the vagaries of the stock market and from predicted lapse of the
existing policies. It might also have been prudent to take a “wait and see” approach,
however, the prudent investor standard gives broad latitude to the Trustee in making these
types of decisions.
(23) Had the insurance policies lapsed, the Beneficiaries would have received no
distribution from the Trust. Certainly, that outcome was not within the intent of the
Settlor at the time he established this Trust.
(24) Frankly, financial trends outside of the control of the Trustee or the Beneficiaries
were the direct and proximate cause of the problem facing the Trust in 2003. While it
would have been preferable for the Trustee to provide regular accountings to the
Beneficiaries, the receipt of timely financial reports by the Beneficiaries would not have
changed the negative financial condition of the Trust.
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(25) The Beneficiaries want this Court to focus on the defects in KeyBank's
decisionmaking process, and while the Court recognizes that this process was certainly less
than perfect with respect to the Cochran Trust, the Court concludes that it would need to
engage in sweeping conjecture, which is not supported by the evidence, to find that
damages resulted to the Beneficiaries based on the circumstances presented here.
(26) Accordingly, this Court concludes that KeyBank did not breach its fiduciary
responsibility to the Trust or the Beneficiaries, and the lack of financial reporting to the
Beneficiaries and the decision to the [sic] reinvest the corpus of the Trust in a guaranteed
insurance policy was not the proximate cause of damages to the Beneficiaries.
(27) In conclusion, by insuring [sic] that the Trust was funded by a guaranteed death
benefit in the sum of $2,536,000.00, KeyBank acted in good faith to protect the interests
of the Beneficiaries and to comply with the directives of the Settlor as contained in the
Trust document.
Id. at 22–24. The Beneficiaries now appeal.
DISCUSSION AND DECISION
I. Standard of Review
The trial court entered findings of fact and conclusions of law pursuant to Indiana
Trial Rule 52(A). We may not set aside the findings or judgment unless they are clearly
erroneous. Menard Inc. v. Dage-MTI. Inc., 726 N.E.2d 1206, 1210 (Ind. 2000). First, we
consider whether the evidence supports the factual findings. Id. Second, we consider
whether the findings support the judgment. Id. “Findings are clearly erroneous only when
the record contains no facts to support them either directly or by inference.” Quillen v.
Quillen, 671 N.E.2d 98, 102 (Ind. 1996)..A judgment is clearly erroneous if it relies on an
incorrect legal standard. Menard, 726 N.E.2d at 1210.
In conducting our review, we give due regard to the trial court's ability to assess the
credibility of witnesses. Id. .While we defer substantially to findings of fact, we do not do so
to conclusions of law. Id. We do not reweigh the evidence; rather, we consider the evidence
most favorable to the judgment with all reasonable inferences drawn in favor of the
judgment. Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999).

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II. The Prudent Investor Act
The Beneficiaries first argue that the trial court erroneously concluded that
KeyBank's actions leading up to the 2003 Exchange did not violate the Indiana Uniform
Prudent Investor Act (PIA). Ind. Code §30-4-3.5-1 et. seq. In relevant part, the prudent
investor rule, as set forth in the PIA, provides as follows:
(a) A trustee shall invest and manage trust assets as a prudent investor would, by
considering the purposes, terms, distribution requirements, and other circumstances
of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill,
and caution.
(b) A trustee's investment and management decisions respecting individual assets
must be evaluated not in isolation but in the context of the trust portfolio as a whole
and as a part of an overall investment strategy having risk and return objectives
reasonably suited to the trust.
(c) Among circumstances that a trustee shall consider in investing and managing trust
assets are those of the following that are relevant to the trust or its beneficiaries: (1)
General economic conditions, (2) The possible effect of inflation or deflation, ***(5)
The expected total return from income and the appreciation of capital, (6) Other
resources of the beneficiaries, (7) Needs for liquidity, regularity of income, and
preservation or appreciation of capital.
***
(d) A trustee shall make a reasonable effort to verify facts relevant to the investment
and management of trust assets.
***
(f) A trustee who has special skills or expertise, or is named trustee in reliance upon
the trustee's representation that the trustee has special skills or expertise, has a duty
to use the special skills or expertise.
I.C. §30-4-3.5-2.
A. Delegation
The Beneficiaries first argue that KeyBank violated the PIA by imprudently and
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improperly delegating certain decisionmaking functions to Roberson and Stuart. Initially, we
observe that the PIA contemplates the delegation of functions by a trustee under certain
circumstances:
A trustee may delegate investment and management functions that a prudent
trustee of comparable skills could properly delegate under the circumstances. The
trustee shall exercise reasonable care, skill, and caution in: (1) selecting an agent; (2)
establishing the scope and terms of the delegation, consistent with the purposes
and terms of the trust; and (3) reviewing the agent's actions periodically in order to
monitor the agent's performance and compliance with the terms of the delegation.
I.C. §30-4-3.5-9(a)..
Here, it is evident that Roberson chose to monitor the Trust throughout its
existence. He helped to create it and, in 1999, recommended an exchange of policies. Then,
in 2003, KeyBank began its own review of the viability of the current structure of the Trust,
engaging Oswald to analyze the current VUL policies. Simultaneously—and of his own
volition, apparently —Roberson conducted his own review. Roberson eventually proposed
to KeyBank that a John Hancock policy be purchased to replace the two VUL policies.
After Roberson made his proposal, KeyBank again hired Oswald to conduct an
independent review of the John Hancock policy. The fact that Roberson submitted the
policy for review does not constitute a delegation of KeyBank's decisionmaking duties.
Oswald was an outside, independent entity with no policy to sell or any other financial stake
in the outcome. Under these circumstances, we do not find that KeyBank delegated any
investment or other duties to Roberson. Although the Beneficiaries direct our attention to
evidence in the record supporting their contention that there was, in fact, a delegation, this is
merely a request that we reweigh the evidence—a request we decline.
B. Oswald's Recommendations
The Beneficiaries next argue that KeyBank violated the PIA by disregarding
Oswald's recommendations. As noted above, KeyBank first asked Oswald to review the
existing VUL policies. After comparing the policies' respective hypothetical performances
given hypothetical interest rates, Oswald rated both policies as a Category Three on a scale
from one to five, noting that “additional future premiums may be required” and that the
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policies “should be audited every two to three years or more often” under certain
circumstances. Appellants' App. p. 312–13, 315. KeyBank then asked Oswald to review the
proposed John Hancock policy. Oswald found that no further premiums would be required
to maintain that policy until Stuart reached the age of 100. Ultimately, Oswald recommended
the purchase of the John Hancock policy, rating the policy as a Category One on a scale
from one to five, with one being the best. No further audits would be necessary. Id. at 334–
35.
Having reviewed these reports, it is evident that Oswald found both options—the
existing VUL policies and the John Hancock policy—to be palatable. Each had their own
sets of pros and cons. The existing VUL policies may have lapsed before Stuart reached the
age of 60 and would likely have required additional premiums to finance—money that Stuart
no longer had. The John Hancock policy, on the other hand, offered a significantly reduced
death benefit but was guaranteed to remain in force until Stuart reached the age of 100 and
would require no additional financing. Oswald found the John Hancock policy to warrant
the highest rating and concluded that no further audits would be necessary. Under these
circumstances, we cannot say that KeyBank's decision to exchange the VUL policies for the
John Hancock policy parted ways from Oswald's advice and recommendations. KeyBank
merely chose between two relatively acceptable options—a decision it was entitled to make
as trustee. We do not find that it acted imprudently on this basis.
C. Investigation of Alternatives
The Beneficiaries next fault KeyBank for failing to investigate alternatives aside from
retaining the existing VUL policies or exchanging them for the John Hancock policy. It is
very likely that, no matter what the circumstances, a trustee could always do more.
Investigate further, engage in more brainstorming, expand the scope of its queries, etc. It is
difficult, if not impossible, to draw a bright line demarcating the point at which a trustee has
done enough from the point at which it must do more. Here, KeyBank was concerned about
the state of the economy, the stock market, and Stuart's limited financial resources. It
examined the viability of the existing policies and investigated at least one other option. Of
course it could have done more, but nothing in the record leads us to second-guess the trial
court's conclusion that, while KeyBank's “process was certainly less than perfect,” it was
adequate. Appellants' App. p. 22–24. Thus, it was not clearly erroneous for the trial court to
275

conclude that KeyBank did not act imprudently for this reason.
The Beneficiaries also argue briefly that KeyBank's conduct surrounding the 1999
Exchange violated the PIA. As noted above, at the time KeyBank assumed the duties of
successor trustee, the underwriting for the exchange of policies had been approved and
Stuart had already submitted to the physical exams. Indeed, the exchange had been
contemplated since the summer of 1998. Furthermore, the transaction nearly doubled the
total death benefit available under the trust. At trial, the Beneficiaries' experts testified that
they had originally committed a calculation error with respect to the 1999 Exchange and,
once the error was corrected, they believed that the risk factors associated with the 1999
Exchange were within the range of defensible possibilities. Appellee's App. p. 412–17. Under
these circumstances, there is no evidence supporting the Beneficiaries' argument that
KeyBank violated the PIA with its conduct in 1999.
D. No Hindsight
The PIA cautions that “[c]ompliance with the prudent investor rule is determined in
light of the facts and circumstances existing at the time of a trustee's decision or action and
not by hindsight.” I.C. §30-4-3.5-8. Here, at the time KeyBank was evaluating its options
before the 2003 Exchange, it was working with the following facts and circumstances: (1) a
rapidly declining stock market; (2) the most recent two years, in which the Trust had lost
progressively more money, with every reason to believe that further erosion would occur
with every day it held the VUL policies; (3) a grantor in his early 50s with a life expectancy of
88 years; (4) a grantor who had lost a great deal of money because of the economic decline
and, consequently, had no further funds to invest in the trust; and (5) a trust that consisted
of two life insurance policies that an independent expert estimated could lapse within
approximately five years if no further funds were invested.
Under these circumstances, KeyBank's decision to exchange the VUL policies for
the John Hancock policy was eminently prudent, reduction in death benefit notwithstanding.
That a “wait and see” approach may also have been a prudent course of action does not alter
the propriety of the exchange. We now know, in hindsight, that the economy improved and
Stuart died unexpectedly less than a year after the 2003 Exchange took place—given those
facts, of course, we understand that the Beneficiaries wish that KeyBank had made a
different decision. But keeping in mind only the facts and circumstances at the time
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KeyBank made its decision, we cannot say that its decision violated the PIA.
III. Trustee's Duties
The Beneficiaries next argue that even if KeyBank did not violate the PIA, it
breached a number of its duties to them. A trust is a fiduciary relationship between a person
who, as trustee, holds title to property and another person for whom, as beneficiary, the title
is held. I.C. § 30-4-1-1(a). A “breach of trust” is a violation by the trustee of any duty that is
owed to the beneficiary, with the duties being established by statute and by the terms of the
trust. Davis v. Davis, 889 N.E.2d 374, 380 (Ind. Ct.App. 2008). In relevant part, Indiana Code
section 30-4-3-6 provides as follows:
(a) The trustee has a duty to administer a trust according to its terms.
(b) Unless the terms of the trust provide otherwise, the trustee also has a duty to do
the following: (1) Administer the trust in a manner consistent with [the PIA]. * * *
(3) Preserve the trust property. (4) Make the trust property productive for both the
income and remainder beneficiary. As used in this subdivision, “productive” includes
the production of income or investment for potential appreciation. * * * (7) Upon
reasonable request, give the beneficiary complete and accurate information
concerning any matter related to the administration of the trust and permit the
beneficiary or the beneficiary's agent to inspect the trust property, the trustee's
accounts, and any other documents concerning the administration of the trust.* * *
(10) Supervise any person to whom authority has been delegated....
Furthermore, a trustee owes its beneficiaries a duty of accounting, which requires the
trustee to deliver an annual written statement of the accounts to each income
beneficiary or her personal representative. I.C. § 30-4-5-12(a). Finally, it is well
established that a trustee “shall invest and manage the trust assets solely in the
interest of the beneficiaries.” I.C. § 30-3-5-5.
A. Relationship to Beneficiaries
1. Annual Reports
The record reveals that when the Beneficiaries were minors—as they were for most
of the relevant period of time—KeyBank sent its annual reports to Stuart, their father. This
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was not a perfect solution, inasmuch as it was Vance, their mother, who was the custodial
parent. But it establishes KeyBank's good faith, at the least. Cf. Davis, 889 N.E.2d at 383-84
(finding a breach of trust where trustee willfully withheld information from the beneficiaries
and engaged in self-dealing).
At some point before the 2003 Exchange, one of the Beneficiaries turned eighteen.
KeyBank inadvertently failed to send her a copy of the annual report at that time. Following
her birthday, she requested documents from KeyBank. A KeyBank representative contacted
the Beneficiary and Vance and indicated that the documents were ready at a local KeyBank
office to be picked up. Yet again, therefore, we cannot conclude that there is any evidence
that KeyBank willfully withheld information from the Beneficiary.
The Beneficiaries also argue that KeyBank breached its duties by failing to provide
sufficient information regarding its plan to carry out the 2003 Exchange. We cannot agree,
inasmuch as the Trust itself gave the trustee the power to surrender or convert the policies
without the consent or approval of anyone: “The Trustee shall have all of the rights of the
owner of such policies and, without the consent or approval of the Grantor or any other person,
may sell, assign or hypothecate such policies and may exercise any option or privilege
granted by such policies, including ... the right to ... surrender or convert such policies....”
Appellants' App. p. 455 (emphasis added). There was no requirement, therefore, that
KeyBank notify the Beneficiaries of the impending exchange, inasmuch as neither their
consent nor approval were required to carry out the transaction.
Even if we were to find that KeyBank's actions herein constituted a breach of its
duty to the Beneficiaries, we cannot countenance the Beneficiaries' argument that the lack of
receipt of an annual report or failure to provide information about the exchange, without
more, supports an award of compensatory damages. For damages to be warranted, we can
only conclude that causation must be established. The trial court found that “the receipt of
timely financial reports by the Beneficiaries would not have changed the negative financial
condition of the trust” and that the “lack of financial reporting to the Beneficiaries was not
the proximate cause of damages to the Beneficiaries.” Appellants' App. p. 22–24. There is
certainly evidence in the record supporting those findings. We agree with the trial court that
“financial trends outside of the control of the Trustee or the Beneficiaries were the direct
and proximate cause of the problem facing the Trust in 2003,” id., and would add that
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another contributing problem beyond everyone's control was Stuart's tragic, untimely death.
We simply cannot conclude that KeyBank's shortcomings vis a vis the provision of annual
reports and other information to the Beneficiaries was a proximate cause of any damages to
the Beneficiaries.
2. Duty of Loyalty
Next, the Beneficiaries argue that KeyBank somehow breached its duty of loyalty to
them. The only evidence they point to in support of this argument is the fact that KeyBank
had various contacts and communications with Stuart between 1999 and 2003. According to
the Beneficiaries, this evidence supports an inference that KeyBank was loyal to Stuart rather
than to the Beneficiaries, as required by law. We cannot agree. A trustee must, as a practical
matter, have contacts with the settlor. Appellee's App. p. 474. For example, if changes are
going to be made to an insurance policy, those changes generally require that the settlor
submit to a physical exam; therefore, such a change cannot be effectuated without
communication between a trustee and settler. Id. Nothing in the law prohibits contact
between a trustee and settlor, nor should it. Here, nothing in the record leads us to conclude
that KeyBank breached its duty of loyalty to the Beneficiaries.
B. Delegation
The Beneficiaries also argue that KeyBank breached its duties to them by delegating
certain decisionmaking functions to Roberson without adequate oversight. As discussed
above, however, the record supports a conclusion that, in fact, no such delegation occurred.
Furthermore, KeyBank engaged its own independent expert to evaluate the VUL policies
and the John Hancock policy that was suggested by Roberson. Under these circumstances,
we do not find that KeyBank breached its duties to the Beneficiaries in this regard.
C. Grantor's Intent
Finally, the Beneficiaries argue that the trial court erroneously concluded that the
2003 Exchange was consistent with Stuart's intent. The primary goal in construing a trust
document is to ascertain and effectuate the intent of the settlor, which may be determined
from the language of the trust instrument and matters surrounding the formation of the
trust. Malachouski v. Bank One, 590 N.E.2d 559, 565-66 (Ind. 1992). The Beneficiaries suggest
that the trial court was improperly considering Stuart's acts or requests made after the trust
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was executed in reaching that conclusion. We cannot agree, however, inasmuch as the trial
court explicitly concluded as follows: “Had the insurance policies lapsed, the Beneficiaries
would have received no distribution from the Trust. Certainly that outcome was not within
the intent of the Settlor at the time he established the Trust.” Appellants' App. p. 22–24 (emphasis
added). Nothing in the record suggests that the trial court was clearly erroneous in reaching
that conclusion, and we decline to disturb its ruling for this reason.
CONCLUSION
In sum, we find that the trial court did not erroneously conclude that, while
KeyBank's decisionmaking process and communication with the Beneficiaries was not
perfect, it was sufficient. Although it is tempting to analyze these cases with the benefit of
hindsight, we are not permitted to do so, nor should we. KeyBank chose between two
viable, prudent options, and given the facts and circumstances it was faced with at that time,
we do not find that its actions were imprudent, a breach of any relevant duties, or a cause of
any damages to the Beneficiaries.
The judgment of the trial court is affirmed.
Class Discussion Tool
Glover Washington placed his entire estate in trust for the benefit of his seventy-five
year old wife, Sarah for life, with the remainder to be distributed to his five children. The
primary corpus of the trust consisted of a stock portfolio. The portfolio contained the
following: 60% Washington Computer stock; 10% Apple Computer stock; 5% Dell
Computer stock; and 5% Microsoft stock. The 60% Washington Computer stock
represented a 58% ownership interest in the company. The Washington Computer Company
had been in the Washington family for over fifty years and Glover made it clear that he
wanted his descendants to always have the controlling interest in the company. In 2000,
Glover died and City Bank assumed its role as trustee. At that time, Washington Computer
stock was selling for $123 per share. In 2004, the Washington Computer stock was selling
for $80 per share. The stock continued to sell as follows: 2005 ($72); 2006 ($108); 2007
($94). When Sarah died in 2008, the Washington Computer stock was selling for $85 per
share. At no time did City Bank discuss selling the trust’s shares of Washington Computer
stock. In 2009, when City Bank made its accounting to Glover’s five children and prepared
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to distribute the remaining trust funds, the children objected to the accounting.
children sued City Bank for breaching the duty of prudence. What result?

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The

Chapter 10 - Duty of Loyalty
The trustee must administer the trust solely in the interest of the beneficiaries.
This is similar to the exclusive benefit rule under ERISA that requires retirement funds to be
managed for the exclusive benefit of the retirees. The two main indicators of disloyalty occur
when the trustee engages in self-dealing or ignores a conflict of interest. Self-dealing occurs
when the trustee buys or benefits from the sell or purchase of trust property directly or
indirectly. If the trustee engages in self-dealing, good faith and fairness to the beneficiaries
are not enough to save the trustee from liability. In case of self-dealing, the court makes no
further inquiry. Therefore, the trustee’s good faith and the reasonableness of the transaction
are irrelevant. The beneficiaries have several remedies when the trustee engages in selfdealing. First, the beneficiaries can hold the trustee accountable for any profit he made on
the transaction. In the alternative, if the trustee purchased the property from the trust, the
beneficiary can sue to compel the trustee to restore the property to the trust. In the event the
trustee has sold his own property to the trust, the beneficiary can sue to make the trustee
return the purchase price and take back his property. The trustee is not without defenses
when it comes to self-dealing. In order to avoid liability, the trustee must prove that the
settlor authorized the self-dealing or that the beneficiaries consented to the transaction after
he made full disclosure. Nonetheless, the transaction must be fair and reasonable.
A conflict of interest occurs when the trustee facilitates the sell or purchase of
trust property to a person or entity to which the trustee also owes a fiduciary duty. For
example, if an attorney who is acting as trustee sells trust property to one of his clients, a
conflict of interest arises. The court will evaluate the transaction to see if was fair and
reasonable to the trust. In that case, the trust pursuit rule provides a remedy for the
beneficiary. Under that rule, if the trustee wrongfully disposes of trust property and acquires
other property, the beneficiary is entitled to enforce a constructive trust on the newly
acquired property so acquired. Hence, the new property becomes a part of the trust assets.
In the event that the trust property ends up in the hands of a third party, there are two
possible results. If the third party is not a bona fide purchaser (BFP))(one who pays value
and takes without notice of the breach of trust), he does not hold the trust property free of

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the trust. If the person is a BFP-he holds the trust property free of the trust and is under no
liability to the beneficiary.
Problems
1. Karlowba established a support trust for the benefit of her son Kahn. The corpus of the
trust was a collection of antique cars valued at $200,000 and other property. After Karlowba
died, Cory assumed his roll as trustee. The trust needed cash in order to pay monthly income
to Kahn. Thus, Cory decided to purchase the antique car collection from the trust. In order
to avoid the appearance that he was taking advantage of the trust, Cory purchased the car
collection for $350,000. Later, the car collection appreciated to a value of $800,000. Kahn
sued Cory to recover the profits from the appreciation of the car collection. What result?
2. Alberto established a trust for his daughter Isabella. The corpus of the trust was an
apartment complex valued at two million dollars. Lionel was appointed as trustee over the
Isabella trust. Lionel was also trustee over a second trust that had been created by Bradford
for the benefit of his son, Carlton. For tax reasons, the Carlton trust needed to make an
investment. Lionel purchased the apartment complex from the Isabella trust for the Carlton
trust. Lionel used two million dollars from the Carlton trust to purchase the apartment
complex. Later, the apartment complex was worth three million dollars. Isabella sued Lionel
to recover the profits from the appreciation of the apartment complex. What result?
3. Please label the following situations as self-dealing or conflict of interest.
a). Elaine’s brother Chris purchased property from a trust over which she is trustee.
b) Joseph gives property from a trust over which he is trustee to his mistress, Arlene.
c) Galvin sells land owned by his medical practice to a trust over which he is trustee.
d). Melvin, a psychologist, sells property from a trust over which he is trustee to one of his
patients.
e) Zach sells property from a trust over which he is trustee to City College. Zach is on the
board of trustees of City College.

Boyce Family Trust, 128 S.W.3d 630
WILLIAM H. CRANDALL, Jr., Judge.

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Defendant, Robert B. Snyder, appeals from the judgment, entered in a court-tried
case, in favor of plaintiffs, the John R. Boyce Family Trust, John R. Boyce, Mary Ann Boyce,
Daniel P. Boyce, M. Elizabeth Boyce, Emily Ann Boyce, and Stephen Pallen Boyce, in their
action for removal of the trustee and for damages for the trustee's breach of fiduciary duty.
We affirm in part and reverse in part.
In a court-tried case, the judgment of the trial court will be affirmed unless there is
no substantial evidence to support the judgment, it is against the weight of the evidence, or it
erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. Banc. 1976.
We accept all evidence and inferences favorable to the judgment, and disregard all contrary
evidence and inferences. Central Dist. Alarm, Inc. v. Hal-Yuc. Inc., 886 S.W.2d 210, 211 (Mo.
App. E.D. 1994. The trial court is in the best position to judge the credibility of the
witnesses. VanBooven v. Small, 938 S.W.2d 324, 327 (Mo.App. W.D. 1997).
The evidence established that the John R. Boyce Family Trust (hereinafter “family
trust”) was created by the Henrietta Boyce Revocable Living Trust upon the death of
Henrietta Boyce in February 1994. The beneficiaries of the trust were John R. Boyce,
Henrietta's son; Mary Ann Boyce, Boyce's wife; and their four children, Daniel P. Boyce, M.
Elizabeth Boyce, Emily Ann Boyce, and Stephen Pallen Boyce. Henrietta named Anthony
Ribaudo as trustee of the family trust; and in the event Ribaudo resigned, designated
defendant, Snyder, as successor trustee.
For years, plaintiff, Boyce, and defendant, Snyder, were close personal friends and
business associates; and Boyce, an attorney, represented Snyder in legal matters. Snyder
began working in the family grocery store as a teenager. In 1962, at the age of 22, he
acquired his first ownership interest in a grocery store. He later formed Arnold Discount
Foods, Inc. (hereinafter “ADF”), a corporation that owned and operated several small
grocery stores. He converted the stores to Save–a–Lot stores, which were part of a chain of
discount grocery stores. He also bought grocery stores which had failed or were failing. In
1983, he acquired a store in Eureka, Missouri, forming a second corporation, Eureka
Discount Foods, Inc. (hereinafter “EDF”), to own and operate the store as a Save–a–Lot
store (hereinafter “Eureka store”). After 1983, Snyder opened additional Save–a–Lot stores
and placed them in ADF corporation.
Snyder was also an owner and director of First Exchange Bank (hereinafter “the
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bank”), which failed and was taken over by the FDIC. At Snyder's urging, Boyce had placed
several loans with the bank. After the bank's failure, the FDIC called Boyce's loans. When
Boyce was unable to obtain financing elsewhere, the FDIC obtained a judgment against him.
In the fall of 1994, Boyce met with Snyder several times to discuss Boyce's financial
problems. During the meetings, Boyce learned that Snyder was interested in selling the
Eureka store. Snyder's reasons for selling the Eureka store, as stated by him, were that he
wanted to lessen his workload, to reduce the number of stores he owned, and to work with
his son under only one corporation, ADF.
Boyce expressed an interest in purchasing the Eureka store not only as an investment
opportunity for the family trust but also as a way of providing a job for his son, Daniel.
Boyce expressed concern to Snyder, however, that neither he nor Daniel had any experience
in the grocery business. Snyder assured Boyce that Daniel could be trained to operate the
store. Snyder and Boyce were both aware that a Wal–Mart super center was planning to
open in Eureka.
Snyder provided Boyce with the past financial records for the Eureka store and
introduced him to Save–a–Lot executives. The Save–a–Lot representatives told Boyce that
the stores were so easy to run that a “chimpanzee could run one.” On the basis of their
experience, they predicted that the opening of the Wal–Mart super center would cause an
initial drop in sales of ten to 15 percent, but that the Eureka store would recover the loss
within six months. Snyder concurred in that opinion.
Boyce determined that the family trust should purchase the Eureka store and agreed
with Snyder on a purchase price of $403,000.00. The sale was structured as a sale of the
common stock of EDF, so that Snyder could offset the capital gain from the sale of the
store against the capital loss he incurred when the bank failed. No date was set for closing.
Boyce agreed to close when Snyder felt that Daniel was sufficiently trained to operate the
Eureka store successfully.
In January 1995, Daniel began working at one of Snyder's stores located in Fenton,
Missouri. Snyder told his general manager to train Daniel to take over the Eureka store. The
Fenton store manager started Daniel at an entry level position and after two months moved
him into a management trainee program when he became aware that he was training Daniel
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to take over the management of the Eureka store. In May 1995, Daniel continued his
training at the Eureka store under Bob Heaton, the manager of the Eureka store who had
been interested in purchasing the Eureka store but had decided against it. Snyder's general
manager continued to monitor Daniel's training several times per week and told Daniel to
contact her whenever necessary. Daniel was also free to contact the manager of the Fenton
store for guidance. Heaton and Daniel, however, did not get along. Heaton eventually left
employment at the Eureka store at Daniel's request. Daniel was left to manage the Eureka
store on his own, with occasional help from Snyder and his two managers. Snyder's own
store managers had years of experience in the grocery business before they were promoted
to store manager.
The Wal–Mart super center was scheduled to open in the mid-summer of 1995.
Snyder was anxious to close on the sale of the Eureka store. In May 1995, Snyder told Boyce
that Daniel was ready to manage the Eureka store. Boyce relied on Snyder's representation in
deciding to proceed with the closing. When the purchase of the Eureka store was proposed
to the trustee of the family trust, Anthony Ribaudo, he resigned as trustee because he did not
have any experience in the grocery business. As the designated successor trustee, Snyder
agreed to serve as trustee.
On May 30, 1995, Snyder signed documents accepting the trustee position. On May
31, 1995, the closing on the sale of the Eureka store took place. Boyce drafted the terms of
the purchase agreement, which provided as follows: $265.00 to purchase one share of EDF
from Snyder and $265,000.00 to redeem the remaining shares from Snyder, with the result
that the family trust owned the only share of EDF corporation; $13,000.00 to Snyder for
ADF corporation to provided consulting to EDF corporation, payable in monthly
installments; $125,000.00 to Snyder for a non-compete agreement to prohibit him from
owning or operating a grocery store within 10 miles of the Eureka store for a period of five
years, payable in monthly installments. The family trust guaranteed EDF's loan of
$175,000.00 from Rockwood Bank and loaned EDF an additional $75,000.00. Snyder signed
the documents for the sale and financing on his own behalf and as successor trustee of the
family trust.
For the first fiscal year the Eureka store was in business, after the opening of the
Wal–Mart super center, the figures reflected an average decline in sales of 17 percent per
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week. In addition, shortly after closing, the Eureka store's refrigeration equipment needed
extensive repairs and in some cases replacement. In the fall of 1995, Snyder acquired an
interest in real property within a ten-mile radius of the Eureka store, with the intent of
opening another grocery store with his son. Snyder and his son formed a new limited liability
company to operate the new store and opened the store in May 1998. Rockwood Bank
renewed EDF's loan in August 1997, August 2000, and August 2001. At the time of trial, the
family trust remained liable on its guaranty of the EDF loan; and the family trust's loan to
EDF remained unpaid and had increased to $160,676.27.
In 2000, plaintiffs brought the present action against Snyder. Their petition against
Snyder was in six counts: Count I for his removal as trustee; Count II for breach of his
fiduciary duty; Count III for his ultra vires acts; Count IV for avoidance of the ultra vires
acts; Count V for fraudulent misrepresentation; and Count VI for imposition of a
constructive trust. In their action, they sought money damages, a rescission of the sale of the
Eureka store, and the imposition of a constructive trust on the proceeds of the sale of the
Eureka store for the benefit of the family trust. Plaintiffs also brought one count for
negligent misrepresentation (Count VII) against Moran Foods, Inc. d/b/a Save–a–Lot, Ltd.;
but dismissed that count without prejudice before trial. Snyder counterclaimed, seeking
indemnification from the family trust for his attorney's fees and a declaratory judgment that
he was entitled to indemnification. During the pendency of this action, Snyder resigned as
trustee and the court appointed Daniel as interim trustee.
After a bench trial, the court entered judgment in favor of plaintiffs and against
Snyder on Count I for the removal of Snyder as trustee. On Count II for breach of fiduciary
duty, the court awarded total damages of $285,000.00: $185,000.00 for the family trust's
purchase of the Eureka store; and $100,000.00 for the monies loaned by the family trust,
which the trial court determined was a total loss. On Count VI, the court imposed a
constructive trust in the amount of $285,000.00 on the proceeds of the sale of the Eureka
store. The court dismissed as moot plaintiffs' claims in Counts III, IV, and V and entered
judgment in favor of plaintiffs on Snyder's counterclaims. Snyder appeals from that
judgment.
In his first point, Snyder contends that the trial court erred in entering judgment in
favor of plaintiffs because his challenged conduct did not amount to misrepresentations, but
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were merely expressions of opinion or predictions. In addition, he argues that the conduct
occurred prior to his assuming the role of trustee and that he became trustee only after the
deal was fully negotiated and set for closing.
A trustee is a fiduciary of the highest order and is required to exercise a high
standard of conduct and loyalty in administration of the trust. Ramsey v. Boatmen’s First Nat’l
Bank of K.C., N.A., 914 S.W.2d 384, 387 (Mo. App. W.D. 1996). Although the trustee has
many duties emanating from the fiduciary relationship, the most fundamental is the duty of
loyalty. Id. As part of this duty, the trustee is to administer the trust solely in the interest of
the beneficiary. Id. This duty precludes self-dealing, which under most circumstances is a
breach of the fiduciary duty. Id.
Here, Snyder's argument that he merely expressed opinions and predictions in lieu
of misrepresentations is without merit. He was very familiar with the grocery business,
having worked in the business for well over 40 years in varying capacities. During that time,
he had negotiated for and purchased several failed or failing grocery stores. There was
evidence that Snyder had no personal experience regarding the impact a Wal–Mart super
center would have on the sales of the Eureka store, although he admitted at trial that he was
concerned about the competition from a Wal–Mart super center. Yet, he assured Boyce that
the decline in store sales would be minimal and would be recovered six months after the
opening of the Wal–Mart super center. He also was anxious to close on the Eureka store and
pushed for closing, presumably because he was worried about the increased competition
from the Wal–Mart super center. At trial, he was unable to explain his eagerness to close the
sale of the Eureka store. He withheld information from Boyce about the true value of the
store, especially as it faced competition from a Wal–Mart super center. Knowledge of the
value of the Eureka store was particularly within his province, in light of his experience in
purchasing grocery stores experiencing financial difficulty. Snyder was under a duty to
inform the beneficiaries of all facts known by him so that they could make an informed
decision about whether to proceed with the purchase of the Eureka store.
In addition, Snyder represented to Boyce that Daniel was ready to assume
management of the Eureka store. He did this, despite the fact that Daniel did not have any
prior grocery store experience and had been in a management-trainee program for less than
six months. Further, his own store managers had many years of experience in the grocery
288

business before he promoted them to managerial positions.
Finally, Snyder misrepresented his reasons for selling the Eureka store, as evidenced
by his subsequent conduct. His stated motives for selling were his desire to lessen his
workload, to reduce the number of stores he owned, and to work with his son under one
corporation. Yet, after selling the Eureka store, he opened an additional store in violation of
the non-compete agreement and even formed a new business entity to operate that store.
The trial court was not obligated to believe Snyder's proffered reasons for selling the
Eureka store. Nor was the court required to believe Snyder about what facts were known to
him at the time of closing. In a court-tried case, the court is free to disbelieve the testimony
of a witness. See Ford Motor Credit Co. v, Freihaut, 871 S.W.2d 129, 131 (Mo. App. E.D. 1994).
Boyce testified that, had Snyder apprised him of Daniel's lack of readiness to manage
the Eureka store successfully and of Snyder's true reasons for wanting to sell the Eureka
store, Boyce would not have recommended that the family trust purchase the store.
Snyder's argument that the transaction was for all practical purposes completed prior
to his assuming the position of trustee draws a distinction without a difference. Snyder was
acting in his capacity as trustee at the time of closing the sale of the Eureka store. At that
time, he had the duty not only to disclose any information relevant to the sale but also to
avoid engaging in a financial transaction beneficial to his interests and detrimental to the
interests of the family trust. The trial court did not err in finding that Snyder breached his
fiduciary duty to the family trust. Snyder's first point is denied.
In his second point, Snyder asserts that the trial court erred in entering judgment in
favor of plaintiffs because they not only consented to the transaction prior to closing but
also ratified the transaction after the fact by operating the Eureka store for five years before
filing the present action.
When a competent beneficiary who has full knowledge of the facts and of his legal
rights consents to a transaction, he cannot thereafter seek redress against the trustee even
though the transaction would otherwise be a breach of trust. Ramsey, 914 S.W.2d at 387. The
consent of the beneficiary, however, does not preclude him from holding the trustee liable
for a breach of trust, (1) if when he gave his consent, the beneficiary did not know of his
rights and of the material facts which the trustee knew or should have known and which the
289

trustee did not reasonably believe that the beneficiary knew or (2) if the consent of the
beneficiary was induced by improper conduct of the trustee. Id. (citing Section 216
Restatement (Second) of Trusts). When a transaction involves a trustee, it must be fair and
open, and consent must be informed with all parties holding equal knowledge of material
facts and rights and otherwise free of influence. Ramsey, 914 S.W.2d at 388.
Here, as discussed above, Boyce did not have full knowledge of all of the material
facts and did not have knowledge equal to Snyder's. Boyce had never been involved in the
grocery business, unlike Snyder who had been in the business for over 40 years. Boyce relied
on Snyder's estimate of the impact of the Wal–Mart super center on the Eureka store's sales.
Boyce relied on Snyder's representations that Daniel was ready to assume management of
the Eureka store. Snyder was aware that his knowledge regarding the sale of the Eureka store
was superior to Boyce's, yet he induced Boyce to proceed with the sale by representing that
Daniel was ready to manage the store. Under these circumstances, Snyder breached his
fiduciary duty to the trust.
Further, Snyder's argument that the plaintiffs' continuing to operate the Eureka store
was tantamount to a ratification of the sale after the fact is specious. Plaintiffs, once they
purchased the Eureka store, had no choice but to continue to operate it to protect their
investment as much as possible. That conduct did not amount to ratification of the sale.
Snyder's second point is denied.
In his third point, Snyder contends that the trial court erred in imposing a
constructive trust on the proceeds of the sale of the Eureka store. He first argues that there
was no underlying breach of fiduciary duty to warrant the imposition of a constructive trust.
His second argument is that there was no evidence that there were identifiable proceeds
remaining on which to impose a constructive trust. We only discuss Snyder's second claim,
because it is dispositive of this point on appeal.
A constructive trust is a device employed by a court of equity to provide a remedy in
cases of actual or constructive fraud or unjust enrichment. U.S. Fidelity and Guaranty Co. v.
Hiles, 670 S.W.2d 134, 137 (Mo. App. 1984). It may be imposed where, as the result of the
violation of confidence or faith reposed in another, or fraudulent act or conduct of such
other, the plaintiff has been deprived wrongfully of, or has lost, some title, right, equity,
interest, expectancy, or benefit, in the property which, otherwise and but for such fraudulent
290

or wrongful act or conduct, he would have had. Id. The plaintiff may seek to impose the
constructive trust on the specific property after it has left the wrongdoer's hands, until it
reaches the hands of a bona fide purchaser. Id. The plaintiff may also seek to impose the
constructive trust on, or to trace his property into, the proceeds of the property which are in
the hands of the wrongdoer. Id.. In this latter event, the plaintiff may recover any profit or
increase in value that has accrued. Id. The plaintiff is limited, however, to a proportionate
interest in the proceeds, if other separate property is commingled with wrongfully taken
property to produce the price paid for the proceeds. Id. The plaintiff must prove his claim,
both the fact of wrongful taking and any tracing, by clear, cogent and convincing evidence.
Id.
Snyder posits that the essence of a constructive trust is the identification of specific
property or fund as the res upon which the trust may be attached. See Blue Cross Health
Services, Inc. v, Sauer, 800 S.W.2d 72, 76 (Mo.App. 1990). Plaintiffs did not allege and did not
establish that any such identifiable property or fund existed to which the proceeds from the
sale of the Eureka store could be traced.
The appropriate action to enforce a constructive trust is an action for money had
and received. Campbell v. Webb, 363 Mo. 1192, 258 S.W.2d 595, 602 (1953). Notwithstanding
the fact that plaintiffs prayed for the equitable remedy of a constructive trust and for an
accounting for all the proceeds of the sale, in the absence of any allegation of the existence
of specific property or fund constituting the res upon which the trust might be imposed,
their petition failed to invoke equity jurisdiction. See Blue Cross, 800 S.W.2d at 76. Nothing in
the record shows that plaintiffs are entitled to more than a money judgment. The trial court
erred in imposing a constructive trust on the proceeds of the sale.
Under the circumstances of this case, however, it does not follow that Snyder is
entitled to a new trial because of this error. See id. The case was fully tried with ample
opportunity for all parties to present evidence on all issues framed by the pleading. There
was sufficient evidence that plaintiffs are entitled to have Snyder removed as trustee and to
be awarded an amount which represented the money wrongfully taken by Snyder as a result
of his breach of his fiduciary duty to the family trust. The second part of Snyder's third point
is granted.
In his fourth point, Snyder asserts that the trial court erred in entering judgment for
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plaintiffs for money damages, because plaintiffs lacked standing to assert those claims, which
could only be brought by the successor trustee.
The beneficiaries have standing to bring the equitable actions for removal of the
trustee, disqualification of the successor trust, and for an accounting. Deutsch v. Wolff, 994
S.W.2d 561, 566 (Mo. Banc. 1999 (citing Restatement (Second) of Trusts, section 177, 197199). The trustee, however, should bring the claims for money damages. Deutsch, 994 S.W.2d
566. In Deutsch, Missouri Supreme Court recognized that several factors justified an
exception to the general rule. Id. In the instant action, there are factors similar, although not
identical, to those in Deutsch that mitigate against the application of the rule requiring the
successor trustee to bring the present action. See Id. First, Snyder was actively involved in
administering the family trust during the pendency of this action. Although he resigned as
successor trustee, he did so 13 months after the action began. In addition, the court required
the interim trustee, who was appointed to serve during the litigation, to submit monthly
income and expense reports to Snyder and any withdrawals had to be submitted to Snyder
five days in advance of the proposed withdrawal. Second, Snyder denied that his conduct
justified removal. Plaintiffs were required to prove their right to removal by establishing that
Snyder had breached his fiduciary duty to the family trust and that the trust had been
damaged. Thus, the fact issues on the legal and equitable claims were identical. Third, Snyder
did not make any claim before the trial court that the proper party to assert the claim was the
successor trustee, but instead undertook a defense of the legal claims on their merits,
including raising affirmative defenses and pleading counterclaims. Fourth, in addition to all
the beneficiaries, the family trust itself was a party-plaintiff. Fifth, the pleading alleged a
breach of Snyder's fiduciary duty to the trust. Sixth, the money judgment was entered in
favor of all plaintiffs, which included the family trust itself. To allow actions at law to be
prosecuted with the equitable actions is also consistent with the doctrine that once equity
acquires jurisdiction, it will retain it so as to afford complete justice between the parties. Id. at
567. Thus, under the facts of this case, the beneficiaries had standing to bring this action.
Snyder's fourth point is denied.
In his fifth point, Snyder challenges the award of damages of $285,000.00, because
the award was not supported by the evidence.
The trial court's findings relating to actual damages are entitled to great weight on
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appeal and will not be disturbed unless the damages awarded are clearly wrong, could not
have been reasonably determined, or were excessive. Williams v. Williams, 99 S.W.3d 552, 557
(Mo.App. W.D. 2003). If an award of damages is within the range of the evidence, an award
of a particular amount may be considered responsive even though it does not correspond
precisely with the amount claimed. Id.
Here, Boyce testified that the actual value of the Eureka store at the time of sale was
about $150,000.00. The measure of damages for misrepresentation is the difference between
the actual value of the thing sold and the value as represented. Smith v. Tracy, 372 S.W.2d
925, 938 (Mo. 1963). The difference between the purchase price of $403,000.00 and actual
value was $253,000.00. The court's award of $185,000.00 for this element of damages was
within the range of the evidence.
Plaintiffs also claimed damages for the money the family trust loaned in conjunction
with the Eureka store. The evidence was that at closing the family trust loaned $75,000.00 of
the purchase price and throughout the years of operation the family trust loaned additional
monies, with the result that the amount loaned increased to $160, 767.27. The court's award
of $100,000.00 for this element of damages was within the range of the evidence. The trial
court did not err in awarding damages. Snyder's fifth point is denied.
That part of the judgment imposing a constructive trust on the proceeds of the sale
of the Eureka store is reversed. In all other respects, the judgment of the trial court is
affirmed.

Edwards v. Edwards, 842 P.2d 299
WALTERS, Chief Judge.
This is a family dispute involving two agreements to develop real property located in
the vicinity of the Cascade Reservoir. Franklin Edwards (Frank), a real estate developer,
brought this action against his children and the estate of his deceased mother, seeking a
declaratory ruling on the enforceability of a 1964 joint venture agreement and a 1977
contract to develop property held in trust. Following a trial, the district court decreed the
joint venture dissolved as a result of Frank's wrongful conduct, and further held the
subsequent contract voidable as a consequence of Frank's breach of his duty as trustee. We
affirm.
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Facts and Procedural Background
Charles and Ora Edwards had one child, Frank. In 1937, Charles and Ora bought
1,350 acres of land near Donnelly, in Valley County. The federal government purchased the
land in 1940 as part of the development of the Cascade Dam and Reservoir. After the dam
was completed, the government deeded part of the land back to Charles and Ora, which they
thereafter held as community property. The area soon began developing into a location for
summer homes, enhancing the economic potential of the Edwards' property. In 1964,
Charles, Ora, and Frank entered into an agreement (the 1964 Agreement) to develop a
portion of the land known as the Edwards Ranch Subdivisions I and II. Under the terms of
the agreement, Charles and Ora agreed to make these two tracts available for promotion and
sale, and Frank agreed to make the improvements necessary to develop the property, to
promote and sell individual lots, and to oversee the performance of sales contracts.
Specifically, the agreement recited that Frank promised to proceed with plans to develop the
... property for purposes of its sale, to construct the necessary roads, ditches and other
improvements necessary for the development of the area, and to promote and sell the lots in
the two subdivisions. He further agrees to be responsible for the sale of the lots.
The parties also agreed that Frank would receive one-half the net profit from each
lot sold, and that the parties would share expenses equally. The agreement further provided
that it was to remain in effect until all the lots were sold, and that its terms would be binding
on the parties' administrators, executors, and heirs.
Between 1964 and 1974, Frank sold all of the lots in the Edwards Ranch Subdivision
I, and all but eleven of the lots in Edwards Ranch Subdivision II. Frank purchased a
waterfront lot in Subdivision II for himself where he built his home. The eleven unsold lots
lie immediately adjacent to his home, shielding it from some of the other development in the
area.
In March, 1974, Charles Edwards died. With a few exceptions not germane to this
case, Charles left his entire estate, which included his one-half interest in his and Ora's real
property, in trust for the benefit of Ora and his four then-living grandchildren—Frank's four
older children: William, Roger, Dawn, and Alexandra, and named Frank as its trustee.
Pursuant to the terms of the testamentary trust (the Trust), Ora received a life interest in the
trust income, and upon her death the trust corpus was to be divided among the four
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grandchildren. The document authorized the trustee to invade the trust corpus as necessary
to provide for Ora's support, maintenance and health. Charles' will additionally contained
the following request:
Although I am not directing the Trustee not to sell this property [the land
adjacent to the reservoir], I urge that he retain it as long as possible for the
reason that it will continue to appreciate in value.
With the single exception of an offer in 1989—which precipitated this litigation and
is discussed below—Frank made no attempt to sell any of the remaining lots in Subdivision
II after 1974. During 1976 and 1977, Frank and Ora discussed developing and selling other
property to fund the Trust, notwithstanding the fact that there remained unsold lots in the
Edwards Ranch Subdivision II. In April, 1977, Frank and Ora entered into a written contract
(the 1977 Agreement) to develop and sell lots from a twenty-five acre tract within the
original Edwards property, known as the Margot Subdivision. Ora and the Trust each owned
an undivided one-half interest in this property. Under the terms of the 1977 Agreement,
Frank would receive fifty percent of the net profit from each sale, the Trust twenty-five
percent, and Ora twenty-five percent. Frank executed the agreement in his individual
capacity, and also as trustee on behalf of the beneficiaries.
Ora died in July, 1988, terminating the trust. The trust corpus, which included a onehalf interest in the eleven unsold lots in the Edwards Ranch Subdivision II and a one-half
interest in the unsold lots remaining in the Margot Subdivision, was distributed directly to
the four named grandchildren. In her will, Ora named William, the eldest grandchild, the
personal representative of her estate. Over Frank's objection, the will was admitted to
probate.
Shortly after Ora's death, Frank learned that, in 1986, Ora had executed and
recorded a document unilaterally renouncing the 1964 Agreement and declaring it to be of
no further effect. In November, 1989, while the will contest was pending, Rufus and Rona
Gillette offered to buy two of the remaining lots in the Edwards Subdivision II, plus a small
additional parcel outside of the subdivision, for $100,000. Frank was willing to make the sale,
but when he asked William to proceed with the transaction on behalf of Ora's estate, William
refused. The family dispute has also prevented the completion of other proposed sales in the
Margot Subdivision.
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In February, 1990, Frank filed this action against his children and Ora's estate,
seeking a declaration that the 1964 and 1977 agreements were valid and binding upon all of
them, and that Ora's unilateral renunciation of the earlier agreement was without effect. The
three eldest children, William, Roger and Dawn, filed an answer and counterclaim. They
admitted that the 1977 Agreement was still valid and enforceable. They alleged, however,
that the 1986 renunciation was a valid exercise of Ora's rights, and asked the court to declare
the 1964 agreement no longer in effect. Alexandra Edwards filed a separate answer alleging
that Frank executed the 1977 Agreement in violation of his duties as trustee, rendering the
agreement voidable, at least as to her interest.
Without ruling on the validity or effect of Ora's unilateral renunciation of the 1964
Agreement, the court concluded that the joint venture had been dissolved, prior to the time
of the renunciation in 1986, because Frank had willfully and persistently breached his duty to
promote and sell the remaining lots under the Agreement. In ruling on the enforceability of
the 1977 Agreement, the court concluded that, notwithstanding Frank's good faith or the
fairness of the agreement's terms, Frank's dual role as trustee and developer created an
impermissible conflict of interest, and absent Alexandra's consent or authorization by a
court, the agreement was voidable as to her interest.
On appeal, Frank asserts that the district court erred by finding that his conduct
constituted a willful breach of his duties under the 1964 Agreement, and therefore the decree
of dissolution must be reversed. He also avers that the court erroneously held he had
breached his fiduciary duty to Alexandra, and that its declaration that the 1977 Agreement
was voidable as to her interest must also be overturned. We will address these issues in turn.
Standard of Review
The role of this Court in reviewing findings of fact is limited. We do not weigh the
evidence, nor do we substitute our view of the facts for that of the fact finder. Alumet v. Bear
Lawk Grazing Co., 119 Idaho 946, 949, 812 P.2d 253, 256 (1991). Findings made by the trier
of fact will not be disturbed on appeal unless clearly erroneous. I.R.C.P. 52(a). Findings are
not clearly erroneous if they are supported by substantial, even though conflicting, evidence
in the record. Sun Valley Shamrock v. Travelers Learning, 118 Idaho 116, 118, 794 P.2d 1389,
1391 (1990). Evidence is “substantial” if a reasonable trier of fact would accept and rely
upon it in determining whether a disputed point of fact has been proved. Weaver v. Millard,
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120 Idaho 692, 698, 819 P.2d 110, 116 (Ct.App. 1991). However, we freely review any
statements of law and the trial court's application of the law to the facts properly found. Carr
v. Carr, 116 Idaho 747, 750, 779 P.2d 422, 425 (Ct.App. 1989).
Dissolution of the Joint Venture
A joint venture is a relationship analogous to, but not identical with, a partnership.
Brummet v. Ediger, 106 Idaho 724, 727, 682 P.2d 1271, 1274 (1984); Stearns v. Williams, 72
Idaho 276, 284-85, 240 P.2d 833, 839 (1952). Accordingly, the law relating to the dissolution
and termination of partnerships generally applies to joint ventures. See 46 AM JUR.2d Joint
Ventures § 30, at 51 (1969The Uniform Partnership Act, as adopted in Idaho). , enumerates
the legal causes of dissolution. See I.C. § 53-331. Section 53-331(6) provides for dissolution
by decree of a court. The grounds upon which a party is entitled to a judicial decree of
dissolution are set forth in I. C. § 53-332. Specifically, the court will decree a dissolution
whenever a partner willfully or persistently commits a breach of the partnership agreement,
or otherwise so conducts himself in matters relating to the partnership business that it is not
reasonably practicable to carry on the business in partnership with him. I. C. § 53-332(1)(a).
Frank does not contest the applicability of the Uniform Partnership Act to the issues
presented. Rather, his appeal challenges the district court's finding that he “willfully and
persistently breached his duties under the 1964 agreement to the extent it became totally
impracticable to carry on the purpose of the joint adventure—to develop and sell the
remaining lots in Edwards Subdivision II.” Frank maintains that the court's ultimate finding
of a willful and persistent breach is premised on two underlying erroneous findings:
(1) that during the fifteen-year period between 1974 and 1989, Frank did nothing to promote
or sell the eleven remaining lots under the 1964 Agreement; and (2) that Frank intended to
use the lots for his own benefit. He claims that the first finding is clearly erroneous in light
of evidence that he staked lots, graded a road, and orally listed the lots with realtors in the
area. However, it does not appear from the record that these efforts to improve and
promote the lots took place after 1974. Furthermore, the record indicates that Frank failed
to establish any road to some of the lots as required by the original plat. The record also
indicates that two realtors with whom Frank had listed other Edwards properties did not
know that the lots adjacent to Frank's home were for sale. According to Frank's own
testimony, the eleven remaining lots were not advertised after 1974. Frank also argues that
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septic tank restrictions imposed in 1970 and 1972 impeded the further sale of lots in the
Edwards Ranch Subdivision II. Notwithstanding the imposition of the sewage covenants,
however, Frank was able to purchase for himself a lot in that subdivision, and to sell another
lot in 1974, and to attempt to sell the two lots to the Gillettes in 1989.
Frank argues that his inactivity was justified because it furthered the parties' profit
motive and his father's will that he “retain the property as long as possible for the reason
that it will continue to appreciate in value.” Admittedly, the property had increased in value.
However, the trial judge considered Frank's explanation and the evidence supporting it, but
ultimately rejected it, being persuaded that “the most reasonable and rational explanation for
Frank's lack of effort on behalf of the joint adventure is that he intended to use the lots for
his own benefit, to provide a buffer zone between his own house and other residences.”
This finding is supported by evidence of Frank's active development of other Edwards
property around the reservoir, most notably, the lots in the Margot Subdivision. As Frank
acknowledges, the provision in his father's will applied to all of the Edwards property near
the reservoir, including lots in the Margot Subdivision. Furthermore, the evidence indicates
that Frank proposed the development of the Margot Subdivision in 1977 after telling his
mother there were no more lots left to sell, even though the eleven lots next to his own
home remained unsold. The district court also heard testimony from Frank's former wife,
who had lived with him at Edwards Ranch Subdivision II from the time their house was
built in 1972 until 1988. According to her, Frank was not inclined to develop the
surrounding lots and he told her he wanted to preserve his privacy from neighbors.
We conclude that the record contains ample evidence, even if conflicting, to support
the district court's finding that Frank's fifteen years' inaction under the 1964 Agreement
constituted a willful and persistent breach of his duties. Accordingly, the district court's
declaration that the joint venture was dissolved as a result of Frank's conduct is affirmed.
[9][10] As a final note on the subject, we mention that the effective date of a
dissolution is the date of the first effective act of dissolution; subsequent acts or causes of
dissolution are irrelevant. See 59A AMJUR2D Partnership § 814, at 638 (1987). Thus,
although a dissolution by judicial decree generally dates from the date of the court decree,
the date of dissolution may be deemed to have occurred earlier, where, as here, the
partnership is dissolved on the basis of findings that relate back to a prior date. 59A
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AMJUR2D Partnership § 881-883, at 670-71. In view of the court's finding that Frank's
willful and persistent breach predated Ora's 1986 renunciation, the renunciation was a
superfluous act, and a ruling on its validity or effect was unnecessary.
The 1977 Agreement
[11] Next, we turn to the declaration that the 1977 Agreement was voidable as to
Alexandra. Frank seeks to overturn this decision, arguing that the court erroneously held that
his execution of the agreement violated his fiduciary duty of loyalty. As noted above, Frank
contracted to develop the Margot Subdivision—property owned jointly by Ora Edwards and
the Trust. Under the terms of the agreement he was to receive fifty percent of the net profit
from all sales. Frank entered into the agreement on his own behalf and also as trustee on
behalf of the Trust's beneficiaries. Alexandra Edwards, a beneficiary of the Trust and still a
minor in 1977, never consented to the agreement at the time of its making, nor has she
ratified it subsequently. These facts are not disputed.
Although Frank acknowledges that his dual role as trustee and developer generally
would create a conflict of interest, he argues that under the circumstances, the fact that he
placed himself in a position of potentially conflicting loyalties did not constitute a breach of
his fiduciary duty to the beneficiaries. We disagree.
The Uniform Trustees' Powers Act, I .C. § 68-104 through 68-113 describes the
powers that may be exercised by a trustee. The Act specifically recognizes the trustee's
powers to invest the trust assets and to develop, improve and convey them. See I .C. § 68106(c). However, these powers are expressly made subject to the trustee's duty to act with
due regard to his or her obligation as a fiduciary. I .C. § 68-106(b). Although the obligations
of a fiduciary are not enumerated in the statute, they are well established in the law. Often
deemed its first duty, the trustee owes a duty of loyalty
The trustee owes a duty to the beneficiary to administer the trust in the interest of
the beneficiaries alone, and to exclude from consideration his own advantages and the
welfare of third persons. This duty is called the duty of loyalty. If the trustee engages in a
disloyal transaction, the beneficiary may secure the aid of equity in avoiding the act of the
trustee or obtaining other appropriate relief, regardless of the good faith of the trustee or the effect of
the trustee's conduct on the beneficiary or benefit to the trustee.
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In enforcing the duty of loyalty the court is primarily interested in improving trust
administration by deterring trustees from getting into positions of conflict of interests, and
only secondarily in preventing loss to particular beneficiaries or unjust enrichment of the
trustee.
G.G. Bogert & G.T. BOGERT, Law of Trusts §95 (5th ed. 1973) (emphasis added);
see also Restatement (Second) of Trusts §§ 170, 206 (1959); A. Scott, Abridgment of the Law
of Trusts § 170, 1960). “Fidelity in the agent is what is aimed at, and as a means of securing
it the law will not permit the agent to place himself in a situation in which he may be
tempted by his own private interest to disregard that of his principal.” Jensen v. Sidney Stevens
Implement Co., 36 Idaho 348, 353, 210 P. 1003, 1005 (1922). Furthermore, the Uniform
Trustees' Powers Act specifically provides that if the fiduciary duty of the trustee and his
individual interest conflict in the exercise of a trust power, the power may be exercised only
by court authorization. I..C. § 68-108(b).
By contracting to develop and sell the trust property at a profit to himself, Frank
clearly was not acting for the sole benefit of the trust beneficiaries, but for his own interest
as well, therefore creating a conflict of interest. Pursuant to the provisions of the Trustees'
Powers Act, I..C. § 68-108(b). Frank was prohibited from entering into the contract without
court authorization. Although Frank admits he never obtained judicial authorization, he
suggests that the conflict of interest created here ought to be exempted from his duty of
loyalty, arguing that his actions were in accord with the presumptive intent of his father, the
trust settlor, to develop and sell the properties in order to fund the trust corpus. To support
his position, Frank relies on two cases, In re Kellogg’s Trust, 35 Misc.2d 541, 230 N.Y.S.2d 836
(1962) and In re Steele’s Estate, 377 Pa. 250, 103 A.2d 409 (1954). These cases lend little
support, however, because they present situations in which the trustee's conflict of interest
was either passive or was the direct creation of the trust settlor. Here, by contrast, Frank
himself created the conflict by contracting to develop the trust property at a profit to
himself. Although the trust scheme arguably countenanced the development of the trust
properties, their development by way of a specific arrangement involving self-dealing was
neither inherent in the trust scheme nor authorized by the trust instrument. Thus, even if
otherwise applicable in this jurisdiction, the reasoning of the cases cited by Frank is
inapposite to the factual situation here.
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As correctly concluded by the district court, Frank executed the 1977 Agreement in
violation of his duties as trustee. Because Alexandra had neither consented to the agreement
at the time nor ratified it since, she was entitled to equitable relief. The judgment declaring
the 1977 Agreement voidable as to her interest is, therefore, affirmed.
CONCLUSION
The judgment of the district court declaring the 1964 joint venture dissolved and the
1977 agreement voidable as to Alexandra is affirmed.
Class Discussion Tool
Donald and his wife, Minnie, were in poor health and unable to look after their own
affairs. In 1970, Donald, then age 82, executed a power of attorney naming his sons, Roy
and David, as his agent. A few months later, Minnie, age 79, executed her power of attorney
naming her sons, Roy and David, as her agent. In 1970, Donald and Minnie owned real and
personal property of a value estimated to be between $375,000 and $500,000.
During the following three years, Roy sold his parents’ vacation home for $150,000.
He used the money he received from the sale of the home to buy a lake cabin for him and
his wife. Further, Roy misappropriated great sums of money from his parents to pay debts
and living expenses for himself and his family. Roy sold his parents’ art collection to Mystic
Art Gallery. Stanley, the gallery’s owner thought that the art collection belonged to Roy. Roy
also bought a house and gave it to his best friend, Fred, who was having financial problems.
Fred did not know that the house had been purchased with Roy’s parents’ money. David
signed off on all of Roy’s actions because he thought they have been approved by his
parents.
Donald and Minnie executed a will leaving all of their property in trust for their
grandchildren. National Bank was the trustee. After Donald and Minnie died, National Bank
discovered the misappropriations made by Roy. The trustee filed an action against Roy and
David to recover the trust assets. Please analyze all of the relevant legal issues.

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Chapter 11 - Duty of Impartiality
Most trustees are accountable to two types of beneficiaries—present and future.
The present beneficiary relies on the income from the trust. Typically, the future
beneficiaries are paid the principal remaining in the trust after the present beneficiary dies.
For instance, O could execute a will containing the following language: “I leave the residuary
of my estate in trust for the benefit of my daughter for life. After the death of my daughter,
the remaining assets are to be held in trust for my then living grandchildren.” O’s daughter
has a life estate in the first trust; O’s grandchildren have a contingent remainder in the
second trust. The trustee has to make sure that the trust produces enough income to meet
O’s daughter’s needs. In addition, the trustee has to act to ensure that there will be enough
money left in the trust to create the second trust for O’s grandchildren. There is tension
between the interests of beneficiaries entitled to income and those who may later be entitled
to the principal. According to the duty of impartiality, a trustee has a duty to deal with both
the income beneficiary and the remainderman impartially. Consequently, the trustee must
make sure that the trust property produces a reasonable income while being preserved for
the remaindermen. In order to accomplish that goal, the trustee must preserve the trust
property and make it productive so he will have the resources to meet the needs of both the
present and future beneficiaries. The decision often comes down to investing in incomeproducing property that does not appreciate or investing in property that increases in value
that produces little income.

Pennsylvania Company For Insurance on Lives and Granting Annuities v. Gilmore,
43 A.2d 667
SOOY, Vice Chancellor.
This is a bill filed by the trustee of the estate of Frederick Hemsley, deceased, in part
asking for instructions as to its duty with respect to certain ‘tax free’ securities held by it in
its capacity as trustee.
The bill was filed May 15, 1944, final hearing was held on December, 6, 1944, and
final briefs on July 2, 1945. This history of the litigation is not intended as showing any lack
of diligence on the part of the litigants under the circumstances of this case but to make
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record of the fact that there has been no delay on the part of the Court.
That which gives rise to the request for instructions by the trustee is the question as
to whether it should sell all or part of certain ‘tax exempt’ securities now held by it as a part
of the residuary trust in its hands for a ‘profit’ of approximately $212,381.25 over par, and
also certain Government Bonds which are partially tax exempt on which there is a profit of
approximately $19,000 over par. These securities constitute somewhat over 50% of the
original ‘residuary’ trust estate, which aggregated $3,075,000.
This Court uses values that were fixed as of November 27, 1944 but it is conceded
that any variances which have or will result is of small importance ‘because the Court is
asked to adjudicate upon policy and not upon precision and upon the effect generally upon
the life tenants and the remaindermen respectively and not upon the precise dollars which
either will gain or lose.’
While this Court is not called upon to execute the trustee's discretion (3 Bogert on
Trusts and Trustees § 559, page 1787), it would seem that on the facts presented herein the
trustee was amply justified in asking for the Court's aid. The trustee had advised the life
tenants and vested remaindermen of the possibility of the sale of the tax exempts at a price
which would augment the corpus of the trust fund and the life tenants and vested
remaindermen objected to such a sale. The contingent remaindermen are infants and not in
position to voice their wishes. The trustee was in duty bound to consider the interests of
these minors and the only avenue for a full and fair determination of the question was the
filing of the bill and the appointment of the guardian and counsel to represent the infants,
with the resultant decree as to the rights of all parties. This course has not been resisted by
the life tenants or remaindermen and the guardian ad litem for the infants has requested the
Court's determination, and the Court having assumed jurisdiction without objection, should
be very hesitant of its own motion to deny the trustee the protection a decree will afford on
a question which the trustee could not answer in safety.
It is argued by counsel for the life tenants and vested remaindermen that the position
of the trustee is that of stakeholder and that it has assumed the attitude of a champion for
the sale of the tax exempts. I do not so find. True, it has presented its approach to the
solution of the problem and the result of its consideration of that problem, but in so doing
has only given to the Court the benefit of the picture as it sees it, conceding at the same time
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that there is another side to that picture which it leaves for the Court to determine. This is
the proper procedure and it would be improper for the trustee to supinely submit to a decree
at the dictation of some of its cestuis.
Testator died March 15, 1915, leaving a will dated January 12, 1905, with 2 codicils
dated respectively February 20, 1911 and February 11, 1914. Decedent, by his will and
codicils, created 5 separate trusts but the only one we are now considering is that
denominated by the parties as the ‘residuary trust,’ with assets amounting to $3,075,000 at its
inception, which was in the form of cash received by the trustee from the executors of the
estate over a period from 1919 to 1928. This residuary trust, as provided by the decedent,
gave a life estate of two-thirds of the income to the widow, Mrs. Hemsley, and as to onethird of the income, to decedent's only child, Mrs. Gillmore. On Mrs. Hemsley's death her
two-thirds of the income passes to Mrs. Gillmore and on the death of Mrs. Gillmore and
Mrs. Hemsley the entire principal of the trust vests in Mrs. Gillmore's children equally, if
living, the issue of any deceased child to take per stirpes. These great grandchildren of
testator are herein referred to as contingent remaindermen. It should be here noted that
under the terms of the will the vesting in the children of Mrs. Gillmore is determined by the
mother's death, so that if she predeceased Mrs. Hemsley her children's interest becomes
absolute even though the question of the quantum of that interest will be later increased by
the death of the grandmother, Mrs. Hemsley.
Mrs. Hemsley (87 years of age) and Mrs. Gillmore (60 years of age) are living. Mrs.
Gillmore has 3 children, all of whom are of full age.
It thus appears that the parties in interest are first, the life tenants, secondly, the
vested remaindermen, they being the living children of Mrs. Gillmore, and thirdly, the issue
of the grandchildren, the contingent remaindermen. In other words, the interest of the great
grandchildren of decedent is conditioned upon their parent predeceasing Mrs. Gillmore. The
great grandchildren are a minor child of testator's grandson, born June 2, 1936; another
grandchild has 2 children, a minor son born July 7, 1931 and a minor daughter born May 22,
1933; and another grandchild has 2 children, a minor daughter born February 12, 1940, and
another minor daughter born August 19, 1942. These 5 minor children, the contingent
remaindermen of the residuary estate, were represented at the final hearing by guardian ad
litem duly appointed by this Court, as well as by counsel also so appointed.
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The life tenants, Mrs. Hemsley and Mrs. Gillmore, as well as the remaindermen, the
adult children of Mrs. Gillmore, protest against the sale of any of the securities in question.
Counsel for the infant contingent remaindermen says: ‘If the reinvestment of the moneys
secured from such a sale is limited to the purchase of new U. S. Government securities then
this respondent can offer no objection on behalf of the infant defendants who are
contingent remaindermen since the security of the corpus has not been lessened. Neither can
this respondent object to the reinvestment of said moneys at a later date in municipal
securities provided said municipal bonds are of equal security with those now held. * * * It is
the opinion and contention of the Guardian ad litem for the aforesaid contingent
remaindermen that the Court should follow the line of conduct expressed in the above cited
case of Bliss v. Bliss, 126 N.J.Eq. 308, 8 A.2d 705[706], ‘It is the duty of the court to protect
the remaindermen as well as the life beneficiary [under a trust.] Such is also the duty of the
trustees. It is not the province of [the Court of Chancery] to allow trustees to speculate in
stocks which might result in a loss to the remaindermen,’ and should not by its order lend its
aid to the trustee in speculating in stocks which might result in a loss to the contingent
remaindermen but should, if such order is entered, instruct the complainant to confine its
investments to investments having equal security with these that complainant now holds.'
The basis for the position of the life tenants and vested remaindermen is generally
that the requested sale of the tax exempt securities would discriminate against and result in
great loss of income to them and that it would also eventually depreciate the value of the
corpus.
It may be well, before considering the evidence adduced at final hearing, to note the
applicable law.
Both sides agree that the rule is correctly set up in Section 232 of the Restatement of
the Law of Trusts, as well as comments following that rule:
‘If a trust is created for beneficiaries in succession, the trustee is under a duty
to the successive beneficiaries to act with due regard to their respective
interests.
‘If by the term of a trust the trustee is directed to pay the income to a
beneficiary during a designated period and at the expiration of the period to
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pay the principal to another beneficiary, the trustee is under a duty to the
former beneficiary to take care not merely to preserve the trust property but
to make it productive so that a reasonable income will be available to him,
and he is under a duty to the latter beneficiary to take care to preserve the
trust property for him.
‘Although the trustee is not under a duty to the beneficiary entitled to the
income to endanger the safety of the principal in order to produce a large
income, he is under a duty to him not to sacrifice income for the purpose of
increasing the value of the principal.’
Professor Bogert, in his work on Trust and Trustees, Vol. 4, § 801, says:
‘The trustee who holds for successive beneficiaries owes a duty to them to
conduct the trust with equal consideration for the interests of all the
beneficiaries. He should not unnecessarily show a preference either for the
present cestuis or those who are to take income or capital later. * * * ‘A
trustee has no right to take sides as between the life tenants and
remaindermen. If he has an election of taking one of several courses, he must
take, if possible, that which will not benefit one at the expense of the other.’'
Professor Pomeroy, 4th Edition, Vol. 3, Sec. 1071, says:
‘It is the trustee's duty to use diligence in investing the trust property so that
it may produce as much income as possible, and also to use care and
prudence in investing it in such securities as will render its loss highly
improbable, even if not virtually impossible.’
And again in Section 1072:
‘It is the trustee's imperative duty to render the trust property as productive
as possible consistent with its security and with the demands of ordinary
business prudence and judgment.’
Reference is also made to Restatement of the Law of Trusts, Section 227, , pages 651 and
652.
In McCracken v. Gulick, 92 N.J.Eq. 214, 112 A. 317, Mr. Justice Swayze said:
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‘The fundamental principle is to carry out the intent of the testator. Clearly
when he has created a trust fund and directed that the income be paid a
beneficiary for life, he *57 intends to secure that income to the life tenant;
that is the very object of the fund.’
‘To withhold all dividends would strengthen the corpus of the estate, but the
testator can hardly mean to starve the life tenant for the benefit of
remaindermen, whom he often has never seen.’
The McCracken case was followed by Graves v. Graves, 115 N.J.Eq. 547, 171 A. 681
and reference is also made to National Newark & Essex Banking Co. v. Work, 109 N.J.Eq. 468,
158 A. 109, 110::
‘There is another phase of this matter which should be borne in mind, that is,
the intent of the testator. I have no doubt that he wished his children to
enjoy a reasonable income during their lives. His grandchildren, the
remaindermen, some of whom were not in existence when the will was
drawn, could not have interested him particularly. * * * To hold the entire
proceeds of the Meadowbrook income would prevent his children from
living in the manner to which they have always been accustomed, and
deprive them of the ability to care for their own children, the remaindermen,
during their minority; and I believe would defeat the intent of the testator as
I gather it from the will. The trustees admit such a construction would be a
hardship upon the life tenants.’
‘My conclusion is that the dividends which were received by the testator
through Meadowbrook be considered as income and paid to the life tenants.
If it be true that this procedure will deplete the estate, it is unfortunate, but it
is no concern of this court. The testator clearly desired his children to enjoy a
proper income, and it is no fault of any one, if, in the problematical future,
this income diminishes or ceases.’
If it were possible to gather testator's intent as to the solution of the problem before
the Court from the context of the will and codicils the result would be a decree in
conformity therewith. But the Court is not permitted to speculate as to what testator would
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do were he confronted with these problems. The question of intent must be answered by the
language used by testator, but it is obvious that in 1905, 1911 and 1914 testator was not
contemplating a situation brought about by conditions all of which arose long after these
years. At the time of his death income taxes had been imposed, it is true, but these taxes
financed necessities of the Government as they then existed and these necessities had not
brought about the high income tax impost of later years. Since the making of the will and
codicils and testator's death the depression of the late 20s and early 30s and 2 World Wars
have ensued. All we gather from a reading of the will is that testator's first consideration was
for his widow and daughter. He evidently desired them to have an income befitting the
manner and style of living to which they were accustomed. To accomplish this he devoted a
greater portion of his entire estate, giving them an income amply sufficient. His
grandchildren were a secondary consideration. He did not, until 1914, create any separate
trust for them. He made them remaindermen after the life estates. But as conditions were at
the time of the execution of the will and codicils and at the time of Mr. Hemsley's death, he
had a right to believe and evidently did, that he had amply provided for his widow and
daughter for their lives and for his grandchildren thereafter, and under certain contingencies,
his great grandchildren.
The trustee rightfully says that testator's choice of the life tenants as the main object
of his bounty cannot be urged as evidence that he intended ‘to extend to them an ease and
insurance against conditions which he could not have visualized or contemplated at the time
he made his will and codicils.’
The question before the Court must therefore be decided on its legal aspects and the
question is, what is the duty of the trustee of this residuary trust? That duty, as laid down in
the Restatement of the Law of Trusts, is ‘to deal impartially’ as between the successive
beneficiaries, and to act ‘with due regard to their respective interests.’ To accomplish this
result where, as in this case, the trustee is directed to pay income for life to one set of
beneficiaries and at the end of that period pay over the principal to the remaindermen, ‘the
trustee is under a duty’ to the life tenants ‘to take care not merely to preserve the trust
property but to make it productive so that a reasonable income will be available for the life
tenants,’ and it is under a duty to the remaindermen to ‘take care to * preserve the trust
property for them.’ The trustee ‘is not under a duty to the life tenants to endanger the safety
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of the principal in order to produce a larger income,’ but he is under a duty ‘not to sacrifice
income for the purpose of increasing the value of the principal.’
I think it is generally conceded that a sale of the tax exempts and the purchase of 2%
Governments, as contemplated by the trustee, would not endanger or in any way jeopardize
the value of the trust estate.
Would the plan of sale of tax exempts sacrifice income? It will be demonstrated
hereafter that the loss of income to the life tenants would be great and that it would also be
detrimental to the interests of the vested remaindermen.
The duty of the trustee, as I see it, is to act with due regard to the respective interests
of the successive beneficiaries, to deal impartially as between them. To do this, it seems to
me, requires the trustee to view the overall picture as it is presented from all the facts, and
not close its eyes to any relevant facts which might result in an excessive burden to the one
class in preference to the other. To say the trustee may blind itself to the fact that the
income of the life tenants bring them within the high brackets of income tax payments
would be unjust. That fact must be taken into consideration with all other facts and with
them in view, the question of fairness must be answered. The trustee also has a duty to see
that the increase to corpus goes to the contingent remaindermen who may never take, and
while the interest of these contingent remaindermen must be zealously guarded, the trustee's
duty to the life tenants may not be served by saying-we have nothing to do with the question
of income tax and its effect on your interest as life tenants if the sale is made-nor may the
trustee say that the income remaining after the payment of tax if the tax exempts are sold is
sufficient for your needs. It is the duty of the trustee to return the highest income to the life
tenants consistent with the safety of the corpus, and not an income which the trustee may
deem to be sufficient for their purposes.
It is said by counsel for the trustee, ‘if income changes impose new burdens they
should be shared proportionately and not added expense for the one for the alleviation of
the others.’ If the sale is made of the tax exempts the benefit is an increase of corpus for the
contingent remaindermen and not for the benefit of the life tenants. The sale would be to
the sole detriment of that life tenants and vested remaindermen, with no benefit to them at
all, and all benefit to the contingent remaindermen.

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The trustee, as well as the life tenants and the guardian ad litem, each produced
experts to testify as to their opinion as to the propriety of the sale of the whole or a part of
the tax exempts. Each one of these expert witnesses are men of ability, integrity and wide
experience and each gave his expert opinion from his own individual standpoint and
experience.
The trustee's investment officer on trusts, Mr. Ashbridge, disclosed that it was his
opinion that a sale should be had. Mr. Boyd, for the trustee, advocates a sale and
reinvestment in 2% Government Bonds for a period of time and then a sale of the 2%
Bonds and reinvestment in new municipal tax exempts as opportunity offers. Mr. Boyd did
exclude from the sale tax exempts of very short maturity. He said, however, that he was not
considering the duty of the trustee toward the life tenants insofar as protection of income
was concerned. Mr. Collings, for the guardian ad litem, was of the opinion that it was unwise
to sell. He was viewing the matter more from the interest of the life tenants. He said,
however, disregarding the life tenants' interests and only considering the remainder interest,
a sale should be had. The final question to Mr. Collings was: ‘Now having in mind the life
tenants' interest, also having in mind the remainder interest, are you able to form a judgment
as to whether the plan is good or not?’ Answer: ‘If you consider both interests then I think I
wouldn't sell the bonds.’ Mr. Brombach for the life tenants and remaindermen, from whose
testimony the result of the sale of the interest of the life tenants and remaindermen is taken,
though it unwise to sell. General Gillmore for the life tenants and vested remaindermen
likewise thought it unwise to sell.
From the above very sketchy reference to the evidence adduced at final hearing it
would seem that the Court has before it the testimony of men of wide experience in the
financial world and that there is a divergence in the opinion arrived at by these experts, and
that that divergence might be said to leave the weight of the expert testimony in equipoise. I
think it may be fairly said, however, that if the client of any one of these experts happened to
be an individual seeking advice from the standpoint of an investor of his own funds that the
answer would have been a unanimous opinion that the tax exempts should be sold, this
depending, of course, on the income bracket of the individual investor who might be seeking
advice. I think it may also be said that the testimony of the experts, in some instances at
least, displayed a failure to comprehend the trust aspect involved in the question, to the
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extent that it was necessarily involved for a fair solution as between the divergent interests of
the life tenants and remaindermen to those interests of the contingent remaindermen.
Counsel for the life tenants and vested remaindermen have attached to their brief
tables to show the result of a sale of all or half of the tax exempts on the life tenants during
their joint lives, and also on Mrs. Gillmore in the event she survives her mother, which
tables, generally speaking, show, as stated by counsel, ‘that if the sales are made on the basis
as requested in the bill of complaint, and then reinvested on a 2% basis as now suggested,
Mrs. Hemsley will sustain a 58% loss in her retained income after payment of income tax;
Mrs. Gillmore will sustain a 46% loss, and in the event of Mrs. Hemsley's death, Mrs.
Gillmore's loss would soar to 64%. The comparable figures, if only one-half were sold as
suggested at the hearing, would be a 28% loss for Mrs. Hemsley; a 22% loss for Mrs.
Gillmore and a 31% loss for Mrs. Gillmore following Mrs. Hemsley's death.’ These figures,
according to counsel, were on the basis of data produced at the time of the hearings and are
not necessarily the correct percentages as of the date of the filing of briefs. However, it is
suggested that the percentages will not very materially change.
Counsel for the defendants concede that as the tax exempts mature, and assuming
that it is impossible to replace them with new and comparable tax exempts, the foregoing
percentages will change, but alleges that allowing for maturities at the earliest possible dates
on the various tax exempt issues, a sale at the present time would, at the end of 5 years,
result in a loss of approximately $210,000 of tax free income to the life tenants, and at the
end of a 10 year period a loss of approximately $366,000 of such tax free income. These are
minimum figures, assuming payment at the earliest possible maturity dates of the bonds, and
it is alleged that there would be a substantial loss to the 3 grandchildren, but at a greatly
reduced percentage because these grandchildren are in lower tax brackets.
We have before us a picture where if all tax exempts are sold a profit over cost of
approximately $231,000 or a premium over par of over approximately $240,000 may be
gained, which will be added to the corpus of the trust. Such gain, of course, would be subject
to reduction by capital gain tax. This profit would be added to the corpus and be invested so
that the annual income yield would be less than if they were not sold. If sold, we have as
heretofore set forth, a very substantial shrinkage of the yearly income of the life tenants and
a smaller reduction as to the vested remaindermen. From this it is obvious that considering
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the interest of these two classes of beneficiaries alone, a sale of the tax exempts should not
be made. We can readily see that the beneficiaries of the result of the sale will be the
contingent remaindermen by the increase of corpus. The result of a sale, insofar as these
contingent remaindermen are concerned, considered alone, would be for their best interest.
But the proposed plan of sale and repurchase of other securities out of the proceeds of sale
will not add to the security of the corpus as it now exists. These tax exempts are ‘blue chip’
investments and while the contemplated purchase of bonds to replace those sold carries with
it the intent to purchase Government securities of like character, there may arise a
contingency not now foreseen which would render these repurchased bonds less desirable,
and the duty of the trustee of the contingent remaindermen does not carry with it a
requirement that the corpus be augmented unless that result may be accomplished in fairness
to the interest of the life tenants and vested remaindermen. It is, of course, plainly the duty
of the trustee to in no wise speculate with the trust funds.
In view of the facts as the Court sees them, as heretofore outlined, the instructions
to the trustee will be that it is not its duty to sell all or any part of the securities herein
referred to as tax exempts in order that it may capture for the corpus of the residuary trust
the profit now realizable upon said municipal and Government bonds.

Sturgis v. Stinson, 404 S.E.2d 56
LACY, Justice.
In this will construction case, we determine whether the testator placed restrictions
on the amount of income which the income beneficiary was to receive and, if not, whether
the executor was required to administer the assets of the trust created by the will in a manner
which did not discriminate between successive beneficiaries and which produced a
reasonable level of income in relation to the value of the trust assets.
Dr. William J. Sturgis, Jr., died testate in 1986, leaving an estate valued at $1,140,462
consisting of an automobile, approximately $300,000 in various stocks and bonds, and two
parcels of real estate-Bush Hill Farm (the farm), valued in the estate inventory at $708,500,
and a one-third undivided interest in another parcel of land with a value of $126,000. His will
provided that his widow, Anne Sturgis, receive all the income from his estate for her lifetime.
At her death, or if she were to renounce the income, the residue of the estate was to pass to
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his children, Susan Sturgis Stinson and Christopher S. Sturgis (the remaindermen).
The testator named his wife and Robert C. Oliver, Jr., as co-executors. Upon the
wife's election not to serve, Oliver qualified as executor of the estate. In 1989, he filed a bill
of complaint stating that the income beneficiary, Mrs. Sturgis, had complained that “the
income derived from the estate is insufficient based upon the value of the assets of the
estate” and asked that property of the trust be sold and so reinvested as to derive greater
income. The remaindermen opposed the sale of the property and maintained that the trust
assets could not be sold without their consent. The executor sought the guidance of the
chancellor.
After an ore tenus hearing, the court entered a final decree holding that the will
“created a trust;” that the executor had the obligation to deliver all the net income of the
trust to Mrs. Sturgis and to invade the trust corpus when he determined the income
therefrom was insufficient to meet the needs of the income beneficiary; that the executor
had the “authority, but not the obligation, to convert assets of the estate ... including real
estate, to forms other than those in which he received them, so long as he behaves
consistently with the ‘prudent man’ rule;” and that the executor “has performed properly
under the terms of the will.” We awarded Mrs. Sturgis, the income beneficiary, an appeal
from this decree.
The primary controversy here revolves around a single, but valuable, asset of the
trust-Bush Hill Farm. This farm constitutes approximately 75% of the corpus of the trust
and, at the time of trial, had a fair market value of $1.5 million. The maximum annual net
income generated by this asset and paid to Mrs. Sturgis was $1,265.99 in 1988.
Mrs. Sturgis asserts that this return on the property, representing eighty-four onethousandths of one percent of its fair market value, classifies this property as an
unproductive asset and that, under general trust principles, the executor has an obligation to
sell it and reinvest the proceeds. The executor and remaindermen contest Mrs. Sturgis'
assertion that selling the farm is required in this case.
Under general trust law principles, where, as here, a trust is created for successive
beneficiaries, the trustee has a duty to * deal impartially with them. Shriner’s Hospitals v. Smith,
328 Va. 708, 710, 385 S.W.2d 617, 618 (1989); Patterson v. Old Dominion Trust Co., 139 Va.
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246, 257, 123 S.E. 549, 552 (1924). The parties agree that the executor's duties in relation to
trust assets set out in the Restatement (Second) of Trusts embody sound and appropriate
principles:
The trustee is under a duty to the beneficiary to use reasonable care and skill to make
the trust property productive. Restatement (Second) of Trusts Code § 181 (1959).
Unless it is otherwise provided by the terms of the trust, if property held in trust to
pay the income to a beneficiary for a designated period and thereafter to pay the principal to
another beneficiary produces no income or an income substantially less than the current rate
of return on trust investments, and is likely to continue unproductive or under-productive,
the trustee is under a duty to the beneficiary entitled to the income to sell such property
within a reasonable time. Id. at § 240.
The executor and remaindermen assert that the trial court was correct in declining to
apply these principles and require sale of the farm because the disposition and management
of the farm and other trust assets were “otherwise provided by the terms of the” will. The
remaindermen argue** that the testator intended that the farm not be sold unless necessary
to meet the needs of the income beneficiary. The executor argues that as long as the income
beneficiary is receiving income sufficient to meet her needs, his discretion as to the
management of trust assets should not be disturbed.
In contrast, Mrs. Sturgis argues that the will places no condition or limitation on the
amount of income she is to receive and contains nothing to support the inference drawn by
the chancellor that the testator wished to retain the farm as a family heritage.
Resolution of the dispute rests upon the testator's intention as reflected in the will.
The chancellor held that Mrs. Sturgis was entitled to “all net income of the trust,” but he
also found that the testator intended that she receive income necessary to provide her with
“comfortable maintenance and welfare according to her standard of living.” Therefore, the
trial court concluded, in effect, that the executor was not required to manage the trust assets
in a manner designed to provide income in excess of that amount.
As a general rule, the factual determinations of the trial court are accorded
substantial deference on review and will be reversed only if plainly wrong or without
evidence to support them. However, that standard is inapplicable here because the trial
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court's conclusions regarding the testator's intent and its construction of the will were
opinions based solely on the will, and on testimonial evidence and other documents not in
material conflict. Hankerson v. Moody, 229 Va. 270, 274, 329 S.E.2d 791, 794 (1985); Durrette v.
Durrette, 233 Va. 328, 332, 288 S.E.2d 432, 434 (1982); Rinehart & Dennis Co. v. McArthur, 123
Va. 556, 567, 96 S.E. 829, 833 (1918). We begin our review by examining the relevant
portions of the will.
Paragraph Four of the will consists of three sections. The first declares that Mrs.
Sturgis is to receive “[a]ll of the income of my estate, of every nature and wheresoever
situate,” during her lifetime.
The second section of Paragraph Four provides that:
If at any time, ... in the opinion of my Co-Executor, ... the income of
my estate together with such other income available to my wife is
insufficient to meet any unusual expense ... or to provide for her
comfortable maintenance and welfare, then such Co-Executor may
pay to my wife ... such amounts from the principal or corpus of my
estate as such Co-Executor deems necessary for such purposes.
The final section of Paragraph Four provides that when Mrs. Sturgis dies or “if she
should decide that she has no need for such income” the estate devolves upon Christopher
Sturgis and Susan Stinson.
Paragraph Six provides in pertinent part:
It is my will, and I direct that my Executors and their successors
have, in addition to all other powers granted by law, the powers set
forth in Section 64.1-57 of the Code of Virginia (1950), as in force on
the date of the execution of this will, together with the right to sell,
pledge, or hypothecate real estate and other property.
Contrary to the argument advanced by the executor and the remaindermen, the
second section of Paragraph Four imposes no limitation on the first section of that
paragraph. Indeed, the second section confers a separate benefit upon the widow; in the
event the income otherwise available to her “is insufficient to meet any unusual expense ...
or to provide for her comfortable maintenance and welfare,” the executor is empowered to
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invade and deplete the corpus of the trust for her benefit. Consideration of the widow's need
is of concern to the executor and a precondition to his actions only for depletion of the trust
corpus. The power to deplete the corpus for that purpose is irrelevant to the issues framed
in this appeal.
The power of the executor to convert and reinvest corpus assets is granted by
Paragraph Six, in which the executor is given the right to dispose of property and to exercise
all powers and rights afforded a fiduciary under general law and as set forth in Code § 64-157. The will does not specify any criteria of need or other preconditions for the executor's
exercise of these powers. Nor is there any indication that the income beneficiary would
receive anything less than all the net income, regardless of amount, and irrespective of need,
generated from the executor's exercise of his investment and management authority.
This interpretation is consistent with certain actions of the executor. As he testified,
he had converted a number of the stocks in the trust corpus to investments that generated
more income, including some stocks which would have appreciated in value but which did
not generate much income. His conversion of the trust corpus was not limited to
personality; the executor had also agreed to the sale of a portion of the real estate in which
the trust held a one-third undivided interest. There is no indication in the record that the
executor sought the remaindermen's consent for this sale, that the conversion was required
due to Mrs. Sturgis' unusual expenses, or that the payment to Mrs. Sturgis of the income the
new assets produced was based on the executor's determination of her need.
Furthermore, there is nothing in the will or the record to suggest that the executor
was required to treat Bush Hill Farm in a different manner than other trust assets. Although
the testator easily could have addressed the disposition of the farm, he did not. Indeed, the
will does not even refer to the farm specifically. While Bush Hill Farm had been in the
Sturgis family for many years, neither the remaindermen, Dr. Sturgis, nor his parents had
ever lived on the property. The only dwellings on the property were tenant farmers' shacks
which had burned prior to Dr. Sturgis' death. This record does not reflect any connection
the testator had with this piece of property which would support the conclusion that the
testator intended to distinguish its treatment from that to be accorded other real or personal
property in the trust.
We conclude, therefore, that the testator intended that Mrs. Sturgis, the income
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beneficiary, receive unconditionally all the income generated by the trust's assets.
Additionally, if, in the opinion of the executor, the income from the trust and any other
income available to her should become insufficient to meet her needs, the executor would be
required to provide payments to her directly by depleting the corpus of the trust.
Furthermore, we conclude that the testator did not intend to, and did not, direct or restrict
the executor's management of the trust's assets, including Bush Hill Farm, except as
provided under general law.
We have not previously addressed the duty of a fiduciary regarding the level of
productivity of trust assets in circumstances where there are successive beneficiaries and no
explicit instruction by the testator concerning that duty. Cf. Patterson v. Old Dominion Trust Co.,
149 Va. 597, 612-13, 140 S.E. 810, 814-15 (1927) (explicit instruction). We agree with the
parties that the trust principles expressed in the Restatement and quoted above are
appropriate, and we adopt them here.
Except for the directive on depletion of the corpus occasioned by Mrs. Sturgis'
needs, the will contains no other directions regarding the management of the trust assets.
Although the management discretion afforded a trustee under the Code of Virginia is
extensive, see Code §§ 64-1-57 and 55-253 et seq., that discretion is subject to the
requirements of the “prudent man rule,” Code § 26-45.1. The Restatement principles
adopted above define a trustee's obligations under the “prudent man rule” regarding
productivity of trust assets. These principles are applicable to the executor in this case as the
return generated by Bush Hill Farm is so disproportionate to its value, the farm is rendered
an unproductive asset.
In a second assignment of error, Mrs. Sturgis asserts that the chancellor erred “by
failing to require the Trustee to sell unproductive trust assets and to allocate a portion of the
proceeds of such sale to the income beneficiary as required by the Uniform Principal and
Income Act, Va. Code §§ 55-253, et seq.” That Act provides that whenever any asset of a
trust, real or personal, is unproductive, the income beneficiary “shall be entitled to share in
the net proceeds received from [conversion of] the property as delayed income.” Code § 55263(1). The term “delayed income” is defined as
the difference between the net proceeds received from the property and the
amount which, had it been placed at simple interest at the rate of five per
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centum per annum for the period during which the change was delayed,
would have produced the net proceeds at the time of the change....
Code § 55-263(2) The period of delay is calculated “from the time when the duty to
make [a change] first arose, which shall be presumed, in the absence of evidence to the
contrary, to be one year after the trustee first received the property if then unproductive,
otherwise one year after it became unproductive.” Code § 55-263(3). We think these
principles are also applicable here.
We will reverse the judgment of the trial court and remand the case for further
proceedings consistent with this opinion, including the allocation to the income beneficiary
of any delayed income to which she reasonably may be entitled.
Reversed and remanded.
RUSSELL, Justice, with whom STEPHENSON, Justice, joins, dissenting.
The principles of law that govern cases of this kind are well settled: the testator's
intention, if legal and ascertainable, controls. All refinements of the law must yield to the
testator's power to dispose of his property as he pleases. When this intention is ascertained,
the quest is ended and all other rules become immaterial. Picot v. Picot, 237 Va. 686, 689, 379
S.E.2d 364, 366 (1999) (quoting Wornom v. Hampton B. & A. Inst., 144 Va. 533, 541, 132 S.E.
344, 347 (1926). In ascertaining the testator's intention, the court must examine the will as a
whole, giving effect to all its parts if that can be done. Thomas v. Copenhaver, 235 Va. 124, 128,
365 S.E.2d 760, 763 (1988). The intention to be considered is that which is spoken by the
words of the will, not an intention deduced from speculation as to what the testator would
have done had he anticipated a change in the circumstances surrounding him *540 at the
time of its execution. Christian v. Wilson’s Ex’rs, 153 Va. 614, 632, 151 S.E. 300, 305 (quoting
Compton v. Rixey’s Ex’ors, 124 Va. 548, 553, 98 S.E. 651, 654 (1919), cert. denied, 282 U.S. 840,
51 S.Ct. 21, 75 L.Ed. 746 (1930).
The will of Dr. Sturgis is unambiguous and his overall intention is clear from its
words. He wanted his widow to enjoy all income arising from his estate during her lifetime. If
she should experience unusual expenses, or if the income of his estate, together with any
“other income available to [his widow]” should prove insufficient to provide for her
“comfortable maintenance and welfare,” then the co-executor was authorized to invade the
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corpus to the extent necessary, in the co-executor's discretion, to bring the widow's income
up to that standard. At the widow's death, if she should not sooner renounce the income, the
corpus of the estate was to pass to his two children. That, in a nutshell, is the intent of Dr.
Sturgis as expressed in his words, and that is the way the trial court construed his will.
Unfortunately, the majority opinion appears to be based upon the notion that when
Dr. Sturgis wrote paragraph six, he had forgotten paragraph four. The opinion considers the
two provisions in isolation, rather than construing the will as a whole. Indeed, the opinion
goes so far as to say that the executor's power to invade the corpus “has nothing whatever to
do with the issues framed on this appeal.”
When Dr. Sturgis executed his will, he knew what his assets were. He knew that
some parts of his estate produced substantial income, which would primarily benefit his
widow, and that other parts would produce little income, but would constitute a substantial
inheritance for his children. When he spoke of “my estate,” he necessarily contemplated that
combination of income-producing and non-income-producing assets. If he had intended
that his executors convert all his assets into investments producing high income, he could
easily have said so. Rather, he provided that his widow receive “the income of my estate.”
Land is not fungible. It is idle to speculate as to the testator's reason for retaining the
farm as a part of his estate, for his children's benefit, rather than directing his executors to
convert it into income-producing investments. The fact remains, however, that for his own
reasons, he did so. He could have sold it during his lifetime, as his parents before him might
have done, but he did not. Despite its deficiency as a producer of income, the farm was a
part of the estate which passed under the will and which he contemplated as one of the
sources of income for his widow.
Construed according to the testator's clear intentions, the co-executor had authority
to sell timber from the farm, or to sell or encumber the land, in whole or in part, as might be
necessary to maintain the widow comfortably, but not otherwise. That view is reinforced by the
circumstances surrounding the testator at the time of execution of his will. Mrs. Sturgis was
not the mother of Dr. Sturgis' children; they were the children of a prior marriage. Mrs.
Sturgis came into the marriage with income-producing assets of her own, and it was not
apparent that it would ever become necessary to invade the corpus to maintain her
comfortably. As it turned out, the co-executor determined that she did need additional
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income by the time this suit was instituted, and the trial court ruled that the co-executor
should invade the corpus as necessary for that purpose.
In my view, paragraph six of the will merely arms the executors with all the powers
requisite to carry into effect the intent expressed in paragraph four. Paragraph six does not
require the executors to do anything. It certainly does not authorize them, or us, to disregard
the clear intent of the testator, to treat land as if it were stocks and bonds, or to require
conversion of the land into income-producing assets to the detriment of the testator's
children.
Accordingly, I would affirm.
Notes, Questions, and Problems
1. In order to avoid violating the duty of impartiality, the trustee has to carefully balance the
interest of both the income beneficiary and the beneficiary who will ultimately receive the
principle. Nonetheless, the trustee often intentionally or unintentionally favors the
remainderman over the life beneficiary for several reasons. First, the trustee may be reluctant
to give the life beneficiary a lot of income because he anticipates that the life beneficiary may
need more income later in his or her life. This is a valid concern because as people age they
have increased medical and other expenses. However, if the life beneficiary dies sooner than
the trustee expected, the remaindermen will receive a greater portion of the trust assets.
Second, the trustee may be concern about his liability. If the income beneficiary successfully
sues the trustee for not distributing enough money, the trustee can simply take the money
from the trust. On the other hand, if the remainderman successfully sues the trustee for
diminishing the corpus of the trust, the trustee may be personally liable for the loss. Once
the money has been paid out of the trust, the trustee cannot recoup it from the life
beneficiary. Finally, the trustee may favor the remaindermen over the life beneficiary because
he think that the testator so intended. That belief comes from the fact that the
remaindermen are usually minors or persons who need more financial support. If the trust
instrument clearly expresses the testator’s intent that the trustee not deal equally with the
two different types of beneficiaries, the trustee can act impartially and not violate his trust
duty.

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2. The duty of impartiality does not appear to take into consider factors like the age, financial
resources and vulnerability of the present beneficiary and the future beneficiary of the trust.
Should those factors be relevant to a determination or whether or not the trustee has
violated the duty of impartiality?
3. Problems
In which one of the following cases has the trustee violated the duty of impartiality?
a). Bonita stated the following in her will: “I leave my tree farm in trust for the benefit of my
son, Gordon, for life. After Gordon’s dies, the tree farm is to be held in trust for the benefit
of my grandson, Adam.” After Bonita died, Jacob assumed his role as trustee. Jacob entered
into a contract to have all of the trees cut down and sold, so he could have enough trust
income to pay Gordon.
b). Leonard placed his apartment complex in trust for the benefit of Edna for life. After
Edna’s death, the apartment complex was to be sold and the proceeds paid to Isaac. When
Leonard died, Rachel assumed her role as trustee. Rachel used the rents from the apartment
complex to pay the income to Edna. In order to save money, Rachel did not do major
repairs on the apartment complex.
c) Jillian placed the residuary of her estate in trust for the benefit of Antonio for life. After
Antonio’s death, the remaining funds were to be held in trust for the benefit of Antonio’s
children. When Jillian died Stefano assumed his role as trustee. Instead of investing the trust
funds in the stock market, Stefano placed them in a savings account. As a result, he was only
able to pay Antonio six hundred dollars a month.
d). Curtis placed his entire estate in a discretionary support trust for the benefit of Selma for
life. After Selma died, the remaining principal was to be held in trust for Selma’s children.
When Curtis died, Brooklyn assumed his role as trustee. Brooklyn decided that since Selma’s
children were young, they needed the money more than Selma. Thus, he reduced the
distribution of the income, so he could preserve the principal for her children’s trust.
Restatement (Third) of Trusts § 79
(1) A trustee has a duty to administer the trust in a manner that is impartial with respect to
the various beneficiaries of the trust, requiring that:
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(a) in investing, protecting, and distributing the trust estate, and in other administrative
functions, the trustee must act impartially and with due regard for the diverse beneficial
interests created by the terms of the trust; and
(b) in consulting and otherwise communicating with beneficiaries, the trustee must proceed
in a manner that fairly reflects the diversity of their concerns and beneficial interests.
Class Discussion Tool
Sonia left her art collection in trust to Melissa for the benefit of Shirley and Tonya.
Melissa was to use the money made from the sell and rental of the art collection to pay
income to Shirley for life. The trust was to terminate on Shirley’s death. At that time, Melissa
was instructed to distribute the art collection and any trust money to Tonya. Melissa did not
have any expertise in the art world, so she periodically contacted Noah, an art collector, for
advice. In order to show her gratitude to Noah, Melissa gave him one of the paintings from
the trust’s art collection. The art industry suffered an economic downturn, so Melissa was
having a difficult time renting the paintings. Thus, she started selling more paintings to have
money to pay to Shirley. Melissa met with Noah and told him that she planned to sell a
painting call “The Rain.” Noah advised Melissa not to sell the painting until the article,
Rayne, died. At that time, Rayne was suffering from terminal cancer. The trust was strapped
for cash, so Melissa ignored Noah’s advice and sold the painting for $300,000. A week later,
Rayne died. Then, “The Rain” was worth one million dollars. The trust continued to lose
revenue. In order to save money, Melissa reduced the amount of insurance she had on the
painting. A few years later, Shirley died. Unfortunately, before Melissa could turn the
paintings over to Tonya, the paintings were destroyed in a fire. The insurance proceedings
only covered 75% of the value of the destroyed paintings. Tonya sued Melissa for a breach
of the duty of impartiality. Please analyze the legal issues that arise from the facts in a
jurisdiction that has adopted Restatement (Third) of Trusts § 79.

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Chapter 12 - Duty to Account and
Inform
As the previous chapters have indicated, the trustee has a lot of responsibilities.
Some of the trustee’s duties are mandated by law; others are imposed by the provisions of
the trust instrument. In order for the beneficiary to hold the trustee accountable, the
beneficiary must have information about what the trustee is required to do and what the
trustee actually does. Thus, the trustee has a duty to account and to inform. These duties are
related because the purpose of the accounting procedure is to provide the court and the
beneficiary with information. The accounting may be mandated by the trust instrument or
the law or requested by a beneficiary who suspects that the trustee has violated the terms of
the trusts instrument.
The accounting protects the interests of the trustee and the beneficiary. After the
trustee makes an accounting that is accepted by the beneficiary and the court, the trustee is
protected from liability to the extent that the factual basis for a later claim by the beneficiary
was disclosed in the accounting and accepted by the beneficiary. Consider the following
example. A leaves his house to B in trust for the benefit of C. The house declines in value
after B assumes his role as trustee. At an accounting, B informs C that since the house is
depreciating, B has decided to reduce the insurance coverage on it. C fails to object to B’s
accounting and the court approves it. If the trust suffers a loss because of the lack of full
insurance coverage, C might be inclined to sue B for breaching his duty of prudence.
However, A may be relieved of liability because the accounting was accepted by the
beneficiary and approved by the court. Nonetheless, an accounting will not protect a trustee
who misrepresents vital facts. The beneficiary’s consent to the accounting must be informed.
Thus, a beneficiary who lacks the capacity to understand the information presented at the
accounting will not be prevented from later challenging the court’s approval of the
accounting.
When a beneficiary requests an accounting she is usually seeking some type of
damages. Therefore, this chapter includes a brief discussion of the remedies available to the
beneficiary when the trustee is found to have breached one or more of his duties.
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12.1

To Account

Raak v. Raak, 428 N.W.2d 778
PER CURIAM.
Respondents, former trustees of Berdena Raak's revocable trust, appeal as of right
from an order of the probate court requiring them to render an accounting as to trust
property. We affirm.
Petitioner Berdena Raak is a widow in her late seventies who lives by herself.
Respondents are Berdena's children. Throughout their marriage, Berdena's husband was the
exclusive manager of the couple's assets, so that Berdena had no experience in financial
management. Berdena was the sole beneficiary under their joint will. Shortly after her
husband's death in 1981, respondents began to assume control over Berdena's assets which
apparently totaled approximately $104,591.82, exclusive of her home and antique doll
collection.
In September, 1983, Berdena and respondents entered into a written trust agreement
appointing respondents as trustees. Pursuant to the terms of the declaration of trust,
Berdena conveyed to herself and respondents as joint tenants with rights of survivorship her
real property, personal property, and intangible personal property. Along with the trust
agreement, Berdena also granted respondents a durable power of attorney.
In September, 1984 Berdena, revoked the power of attorney. In November, 1984,
she petitioned the probate court for the appointment of a conservator and revoked the
declaration of trust. The probate court granted the petition and named petitioner FMB-First
Michigan Bank conservator. Respondents subsequently delivered to the conservator
$32,579.12 in assets.
On September 9, 1985, Berdena and FMB filed a petition for an order to show cause
in the probate court alleging that, as trustees, respondents converted items of personal
property, failed to make payments on a promissory note to Berdena, used the power of
attorney to transfer title to Berdena's assets without her knowledge and consent, and refused
to reconvey her real and personal property. The petition requested that the court order
respondents to render an accounting of the property while it was held in trust in order to
determine the whereabouts of the $70,000 in missing assets.
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On March 13, 1986, the probate court granted petitioners' motion for partial
summary disposition and ordered respondents to reconvey to Berdena her real property. The
court further ordered respondent Robert Raak to prepare an accounting of all Berdena's
assets over which he had obtained control or title pursuant to the durable power of attorney.
The court, however, reserved the question of whether respondents were under a duty to
render an accounting of the trust property. This was because respondents claimed that under
paragraph 7 of the declaration of trust they had no obligation to account for the trust assets.
Paragraph 7 provided:
“7. ACCOUNTING. So long as [Berdena Raak] lives and is not disabled,
Trustees need keep no accounts because of the control which she has
retained. However, in the event of the disability or death of Berdena Raak,
Trustees shall keep an account of receipts and disbursements and of property
on hand at the end of the accounting period and shall deliver copies to the
beneficiaries or, if one is a minor, to one with whom he makes his home.”
In the meantime, Berdena decided that she no longer wanted an accounting of her
assets, that it did not matter where her $70,000 went, and that she no longer required a
conservator. The court subsequently refused to dismiss the conservatorship, ruling: “I can't
think of a situation that requires one more than this one.”
Following a hearing on the issue whether respondents had an obligation to render an
accounting, the court ruled that respondents were legally obligated to do so. On
respondents' motion for reconsideration, the court stated:
“This Court's appointing of a fiduciary, a [sic] official fiduciary, a
conservator, I think places that fiduciary in the shoes of Berdena Raak, and I
think that even this provision of the trust would allow that conservator to ask
for an accounting. I can't conceive of a situation where someone would make
someone a trustee and not be able to change their minds on an account
situation. I think that's, as I've said before, the responsibility of a fiduciary.
To hold otherwise would mean that Berdena Raak five years down the road
could wonder what happened to her money and have no ability to get
answers to those questions. That's not the way I construe that provision of
the Trust Document.
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“Formal accounts, perhaps. An idea of what happened to the money? No, I
cannot believe that that is included in that or that the law would recognize
that situation. The restatement of law, I think, points out the very difficulties
we are dealing with here. It says a provision in the terms of the trust that
there shall be no liability to account, however, may manifest an intention not
to create a trust in the first place. And I think that indicates what I'm saying.
Fiduciaries commonly have a duty to account to the persons they are
responsible to. And I find nothing else in the brief supplied that would
change my mind on that issue. There is a duty to account by all fiduciaries,
and nothing in the law that I'm aware of or has been presented to me would
change that.”
On appeal, respondents contend that this ruling was erroneous and that the terms of
paragraph 7 of the trust document, relieving them of the duty to account, should control.
We disagree.
It is a strict duty of a trustee to keep and render a full and accurate record and
accounting of his trusteeship to the cestui que trust, and the duty is strictly enforced by the
courts. 76 Am. Jur.2d Trusts, § 505, pp. 725-726. In Michigan, the duty to account is
codified a M.C.L. § 700.814; M.S.A. § 27.5814. Under a trust agreement relieving the trustee
from the necessity of keeping formal accounts, while a beneficiary cannot expect to receive
reports concerning the trust estate, the trustee may be required in a suit for an accounting to
show that he faithfully performed his duties, and is liable to whatever remedies may be
appropriate if he was unfaithful to the trust. See 76 Am. Jur.2d Trusts, § 505, p. 726. This is
because a trust instrument may relieve a trustee from the necessity of keeping formal
accounts, but cannot legally relieve him from his duty to account in a court of equity.
As explained in Bogert, The Law of Trusts & Trustees (rev 2d ed), § 973, pp 462464, 467:
“If the settlor attempts to eliminate any accounting duty of the trustee, by
providing that it shall not be necessary for his trustee to account to anyone at
any time, it would seem that the clause should be invalid and the duty of the
trustee unaffected. The settlor ought not to be able to oust the court of its
inherent equitable, constitutional or statutory jurisdiction, or to override the
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acts of the legislature concerning information to be furnished by trustees to
their beneficiaries. Provisions of this sort in deeds and wills would seem
against public policy and void, just as contract clauses to like effect are
declared null. There is a small amount of authority on the subject. The better
reasoned decisions hold that the trustee still must account to the proper
court.
“A settlor who attempts to create a trust without any accountability in the
trustee is contradicting himself. A trust necessarily grants rights to the
beneficiary that are enforceable in equity. If the trustee cannot be called to
account, the beneficiary cannot force the trustee to any particular line of
conduct with regard to the trust property or sue for breach of trust. The
trustee may do as he likes with the property, and the beneficiary is without
remedy. If the court finds that the settlor really intended a trust, it would
seem that accountability in chancery or other court must inevitably follow as
an incident. Without an account the beneficiary must be in the dark as to
whether there has been a breach of trust and so is prevented as a practical
matter from holding the trustee liable for a breach.”
The case law of other states is consistent with the above authorities. In Wood v.
Honeyman, 178 Or. 484, 566, 169 P.2d 131, 166 (1946), the Oregon Supreme Court stated:
“We are completely satisfied that no trust instrument can relieve a trustee
from his duty to account in a court of equity. We are, however, [satisfied that
when] a provision is found in a trust instrument [relieving a trustee from the
necessity of keeping formal accounts] a beneficiary can not expect to receive
reports concerning the trust estate. But even when such a provision is made a
part of the trust instrument, the trustee will, nevertheless, be required in a
suit for an accounting to show that he faithfully performed his duty and will
be liable to whatever remedies may be appropriate if he was unfaithful to his
trust. Such being our views, it follows that, so far as the Educational Trust
[relieving the trustee from all obligation to account to the beneficiaries of this
trust, or to anyone] is concerned, the defendant was not required to maintain
formal records and supply information to the beneficiaries concerning the
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condition of the corpus of the trust. The provision under consideration did
not, however, relieve him from the accounting which the circuit court
exacted of him.”
Accord: Ferguson v. Mueller, 115 Colo. 139, 169 P.2d 610 (1946) (every trust beneficiary is
entitled to a court accounting from his trustee, and this right cannot be barred by a term of
the trust instrument); Salter v. Salter, 209 Ga. 90, 70 S.E.2d 453 (1952) (a provision in a trust
instrument that the trustee need not account or file an inventory does not relieve the trustee
from accounting in a court of equity); In re Porter’s Estate, 164 Kan. 92, 187 P.2d 520 (1947).
(clause stating that trustees for charity are not to give bond or be under obligation to account
to any person or court does not deprive the court of jurisdiction to hold the trustees to
account).
It is the tendency of the courts to construe narrowly clauses in trust instruments
relieving the trustee from the duty to account. 76 Am. Jur.2d Trusts, § 505, p. 726. Applying
the above principles to the instant case, we find no error necessitating reversal in the probate
court's order requiring respondents to prepare an accounting of the trust assets. Petitioners
have alleged the respondents breached their fiduciary duties to Berdena by converting items
of personal property, failing to make payments on a promissory note, and removing papers
and records. Paragraph 7 may relieve respondents from the necessity of keeping formal
accounts but it does not relieve them of their duty to account in the probate court.
AFFIRMED.

Jacob v. Davis, 738 A.2d 904
ADKINS, Judge.
Appellant William H. Jacob (Bill) is the sole remainderman of two trusts established
under the last will and testament of his father, John B. Jacob (John). Appellant sued Michael
W. Davis, the surviving trustee of those trusts, and Davis's law firm, Ahlstrom & Davis,
P.A., appellees, alleging numerous violations of appellees' fiduciary duties as trustees, and
seeking an accounting, other equitable relief, and damages. The complaint included the
following counts: 1) breach of fiduciary duty; 2) declaratory relief; 3) injunctive relief; 4)
breach of contract; 5) tortious breach of covenants of good faith and fair dealing; 6)
negligence; 7) trover and conversion; and 8) an accounting and establishment of a
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constructive or resulting trust. Ruling on a motion made by appellees at the end of
appellant's case, the trial court entered judgment pursuant to Maryland Rule 2-519 in favor
of appellees on all eight counts. This appeal was timely filed from that judgment.
FACTS
John died on January 22, 1994, leaving an estate valued at $853,164, and a will that
created two trusts known as the Marital Trust, and the Family Trust, respectively
(collectively, “the Trusts”). John's surviving wife, Harriett Bell Jacob (Harriett) was the
income beneficiary of the Trusts, and appellant was the remainder beneficiary. Harriett,
appellant's stepmother, had the right to make certain withdrawals of principal from the
Family Trust, limited in amount and timing, and Davis, as independent trustee, had the
authority to make discretionary distributions of principal from the Trusts to Harriett “as, in
the sole and absolute discretion of [Davis], are necessary, desirable or appropriate for the
health, education and support of [Harriett] in [her] accustomed manner of living.” The will
directed that “in exercising such discretion, the Trustee may take into account other financial
resources of the beneficiaries under consideration.” Harriett was prohibited from
participating in the discretionary decision to distribute principal to her.
John bequeathed his residuary estate to the Marital and Family Trusts. The size of
each trust was determined by a formula, which directed that the Family Trust receive an
amount equal to the maximum amount that could pass free of federal estate taxes by
utilizing the credit against estate and gift taxes (“unified credit”) available to John, and the
Marital Trust receive the remainder. Application of this formula resulted in zero federal
estate tax payable by John's estate, because his available tax credit allowed $600,000 to pass
to the Family Trust free of tax. Further, there were no taxes payable with respect to the
assets passing to the Marital Trust, because the trust qualified for the federal estate tax
marital deduction (“marital deduction”), and thus any tax was deferred until the death of
Harriett.
Appellee Davis and Harriett were designated as personal representatives of John's
estate. The personal representatives were required to make an election on his federal estate
tax return identifying what portion of the Marital Trust they elected to qualify for the marital
deduction. Although all assets passing to the Marital Trust could so qualify, an election was
required to effectuate the marital deduction.
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The personal representatives were required to show on the estate's Administration
Account filed with the Orphans' Court the exact amount passing to the Marital Trust The
First and Final Administration Account for John's estate, filed November 7, 1994, showed
that $80,223 was to be distributed to the Marital Trust. This was consistent with the $80,476
elected by the personal representatives to qualify for the marital deduction on John's federal
estate tax return. In fact, however, no assets were distributed to the Marital Trust, and this
trust never was funded. John's entire residuary estate was distributed by appellee Davis and
Harriett, personal representatives, to the Family Trust. The discrepancy between 1) the
amount designated as passing to the Marital Trust on the distribution account for John's
estate ($80,476), which is consistent with the federal estate tax return, and 2) the actual
amount distributed (zero), is one subject of appellant's complaint.
Another subject of appellant's complaint is the refusal of appellee Davis to provide
appellant with an accounting for the Trusts. Appellant first requested an accounting in May
of 1996, by letter to a paralegal at Ahlstrom & Davis, P.A., who assisted Davis in estate and
trust matters. Responding in a May 28, 1996 letter (May 28 letter), Davis told appellant:
Your letter raised an interesting point regarding my duties to you under the
Trust Agreement for the aforesaid Trust. As you know, I am a co-Trustee
with your stepmother, Harriett Bell Jacob, of this Trust. Pursuant to the
provisions of the Trust, the Trustee is to render an annual account to the
“current income beneficiaries” of the Trust. At present, your stepmother is
the only income beneficiary. Thus, I as Trustee, have no obligation to
provide to you an accounting for the Trust.
If you wish, I will forward a copy of your letter to [the paralegal] to your
stepmother for the purpose of obtaining her approval to give you an
accounting for the Trust. Since she and I are co-Trustees, and since she is the
sole income beneficiary, if I were to provide such an accounting to you
without obtaining her consent first, I would be breaching my fiduciary
obligations to her. Please let me know if you wish for me to do this.... Your
stepmother is very active in the administration of this Trust, and, in fact,
makes all decisions regarding any distributions from the Trust. My only role
at this point is to facilitate her administration and to provide to her any
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counsel that she may wish regarding the Trust.
After receiving this letter, appellant called Harriett to request her permission for an
accounting, but she declined. Harriett died in January 1997, leaving an estate valued at
approximately $1,500,000.
On April 17, 1997, almost a year after his first request, appellant again requested by
letter an accounting of the Trusts, this time through his attorneys, Christopher Wheeler and
Gene C. Lange (collectively, “Wheeler”). In the letter Wheeler asked that the accountings
“cover all assets, property, receipts, expenditures, distributions, trustee and other
commissions, attorneys' and other professional fees, and any and all payments or transfers to
and from the two trusts and [Harriett's] Estate.” The letter also requested all “books,
records, tax returns, court filings or other information” concerning these items. Wheeler
requested that the information be furnished by April 25, 1997. In response to this letter,
Davis wrote to Wheeler on April 18, 1997, and said, inter alia:
[P]lease be advised that the John B. Jacob Marital Trust was never established
since the total assets that were available from the Estate of John B. Jacob to
be distributed to his Testamentary Trust did not exceed $600,000.
Davis enclosed in his letter copies of the following documents: 1) inventory and
distribution account for John's estate; 2) statements from the brokerage firm of Ferris, Baker
Watts for the Family Trust; 3) the check register for the Family Trust checking account; 4)
1995 and 1996 balance sheets, prepared by the accountant for the Family Trust; 5) 1995 and
1996 “general ledgers,” prepared by the accountant, showing income and other deposits
received, disbursements, plus sales of stocks; 6) income tax returns for 1995 and 1996 filed
by the Family Trust; 7) a summary of profits and losses for 1995 and 1996 showing $143,543
in total distributions to Harriett over the two-year period; and 8) John's will and First and
Final Accounting for John's Estate. Davis also provided a two-page document, unsigned,
titled “John Jacob Family Trust, Recap of Transactions.” Pertinent portions of this recap are
reproduced below:
JOHN B. JACOB FAMILY TRUST
RECAP OF TRANSACTIONS
1. JAN. ‘95
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2 taxable GNMA/FNMA bonds (35,000/ea.) transferred to Harriett's
individual account, as well as 6,000 in cash
This transfer was to satisfy the following: $30,000 specific bequest under Mr.
Jacob's Will, the family allowance of $5,000, and all income and interest
earned by the Estate during the time of administration
***
2. MAR. ‘95
400 shares of Pfizer, 100 shares of United Technology transferred to Harriett
as reimbursement for living expenses she paid out-of-pocket during the
course of Estate administration ($28,997 rent to Vantage House, $12,830
other living expenses and medical expenses paid on behalf of Mr. Jacob)
3. APR. ‘95
Balt. Co. MD RFDG, 5.7% ($15,000) bond sold to provide cash for expenses
4. MAY ‘95
100 shares of AT & T ($5600) transferred to Harriett's account—per JD
Ring, this was Trust income due to Harriett and she took the shares of AT &
T rather than cash. Trust income thru May was approx. $9,290. $4,000 was
transferred directly from FBW, and the remainder was taken in stock.
***
5. DEC. ‘95
$10,000 check requested from FBW to put cash into First National Trust
checking for expenses.
6. DEC. ‘95
5% of the value of the Trust to go to Harriett pursuant to her 5/5 powers—
she elected to take the $20,000 Md. 1st Ser. 6.5% bond and the $10,000 P.G.
Co. MD IDA 6.65% bond. These were then transferred into her account.
***

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7. DEC. ‘96
5% of the value of the Trust to go to Harriett pursuant to her 5/5 powers—
she elected to take $10,000 Md. St. Dept. Trans. 6.375%; $15,000 MD CDA
6.3%, and 142 shares of Southern Co. ($3,159 value)
8. JAN. ‘97
$4,750 cash transferred from the Ferris, Baker Watts into First National Bank
Trust account (in anticipation of having to pay medical bills)
There have been a total of 26 checks written from the Trust checking
account since it was opened. 21 of the 26 checks were written to Vantage
House for the monthly rental. The other checks were as follows:
1. Ahlstrom & Davis, P.A. 12/95—$1,931.40 (fees)
2. Harriett Jacob 6/96—$10,000 (repayment of loan—no interest requested)
3. Jeffrey D. Ring & Co. 10/96—$1,350 (fees)
4. Ahlstrom & Davis, P.A. 1/97—$3,095.63 (fees)
5. IRS 1/97—$327.73 (taxes due on '94 return)
The recap summarizes distributions to Harriett, but often does not designate
whether they were principal or income. For example, Harriett's monthly expenses at Vantage
House were paid in March 1995 from the Family Trust, but not designated as either principal
or income. In addition to the Vantage House payments, stocks, bonds, and cash with an
approximate value of $143,000 were transferred to her during the two-year period.
According to the Family Trust checkbook, payments to Vantage House totaled $49,572.67.
These distributions to Harriett or for her benefit substantially exceeded the Family Trust
income during this period.
With respect to the other information requested by Wheeler, Davis said:
With such short notice, the above is the best that we can do to comply with
your request that we provide you information by April 25, 1997. From these
documents, you should be able to understand the relationship between the
Estate of John B. Jacob, the John B. Jacob Family Trust, and Harriett Bell
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Jacob. I think you will find that there were no distributions from the Trust
that did not comply with both the intent and the provisions of the Last Will
and Testament of John B. Jacob.
Davis did not provide any further information to explain the discrepancy in
accounting regarding the Marital Trust funding. Nor did he provide information as to how
the expenses of the trust, such as trustees' commissions and accountant fees, were allocated
between the income beneficiary and the remainderman. Further, no information was
provided to show how in kind distributions of stock to Harriett were valued, e.g., at
inventory value or fair market value.
Davis did offer to meet with appellant and counsel and the accountant for the estate
to discuss their concerns. On May 5, 1997, Wheeler replied that “a meeting would probably
be beneficial, but [we] would prefer that we have a little longer to digest the information you
provided.” In that letter Wheeler also said: “We have noted an omission in the documents
you provided. As a result we hereby request a complete accounting of (including all
documents related to) the transfer of assets owned by John B. Jacob at his death, to the
Family Trust, for the period October, 1994, through January, 1995.” Wheeler also requested
the federal estate tax return for John's estate.
Davis responded to Wheeler's letter on May 7, and enclosed the Ferris, Baker Watts
statements for the period requested and the federal estate tax return. With respect to the
statements, appellee Davis commented: “[p]lease note that there may be discrepancies
between these statements and the accounting that was filed in the Orphan's Court.... The
Accounting does not provide a means to show changes in the prices of the equities during
the time from when the estate is opened until the time the estate is closed.” He also said:
Please advise Mr. Jacob that we are currently in a position to wind up his
father's trust and make the final distributions as required under [his father's]
Last Will and Testament. Until any potential claims that Mr. Jacob wants to
make are resolved, however, we cannot wind up the trust. We await Mr.
Jacob's pleasure with regard to the timing of this process.
On May 23, 1997, Wheeler again wrote to Davis, and requested that he “explain the
justification for the removal of” five stocks and seven bonds from the trust, as well as other
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specific items, suggesting that these items “could only be removed from the Family Trust
pursuant to the terms and intent of the Family Trust established by Mr. Jacob.” The record
does not reflect Davis's response to this letter. Bill testified that he never received any
explanation or accounting from Davis regarding the trust principal that was distributed to
Harriett. Appellees took the position at trial and on appeal that they had no obligation to
account to Bill.
Although the letters refer to several telephone conversations between counsel, there
is no indication that the parties ever had a meeting. Appellant filed suit on July 3, 1997.
DISCUSSION
We must determine the validity of the trial court's entry of judgment on all eight
counts of the complaint in favor of appellees at the end of appellant's case. Our major focus
in this opinion will be on Counts I, II, and III, all of which rest on the equitable claim that
appellees violated their fiduciary duties as trustees. We vacate the judgment entered on these
counts, and remand the case to the circuit court for further proceedings on these counts. We
affirm the lower court's judgment on Counts IV through VIII.
I.
Count I—Breach of Fiduciary Duty
Appellant alleged several breaches of fiduciary duty by appellees, and included
repetitive allegations in his complaint.
We have distilled the alleged breaches into three separate categories, and discuss each
separately.
A.
Entitlement to Accounting
Appellant complains that appellees never provided a full accounting of the Trusts
created under John's will. Appellees contend that they had no obligation to provide an
accounting to appellant either during the lifetime of Harriett or after her death. Alternatively,
they claim that the documents they provided to appellant in April 1997, after her death, were
a sufficient accounting of the Trusts.
Appellees rely on section 10.02 of John's will, which provides:
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My Trustee shall be excused from filing any account with any court;
however, my Trustee shall render an annual (or more frequent) account and
may, at any other time, including at the time of the death, resignation, or
removal of any Trustee, render an intermediate account of my Trustee's
administration to such of the then current income beneficiaries who are of
sound mind and not minors at the time of such accounting. The written
approval of such accounting by all of such income beneficiaries shall bind all
persons then having or thereafter acquiring or claiming any interest in any
trust, and shall be a complete discharge to my Trustee with respect to all
matters set forth in the account as fully and to the same extent as though the
account had been judicially settled in an action or proceeding in which all
persons having, acquiring, or claiming any interest were duly made parties
and were duly represented.
The trial court held that under the terms of the Trusts and applicable law, the
trustees had no obligation to account to a remainderman such as appellant during the
lifetime of the income beneficiary. The trial court seemingly agreed with appellant that an
accounting was due after death, but found that the documents provided by appellees after
Harriett's death sufficed. Specifically, the court said:
[T]he Ferris, Baker Watt statements certainly show with respect to the stock
portfolio [of] which much of this estate was comprised, indicates the
transactions that took place, and also shows at the end [sic] of the taxable
income. So there certainly is a reference as to what income was derived in a
particular year.
We do not agree with appellees' view that appellant is not entitled to request and
obtain an accounting of the Trusts. The leading authorities on trusts are unequivocal in their
articulation of the right of the remainder beneficiary to an accounting during the lifetime of
the income beneficiary and after his or her death. Austin W. Scott and William F. Fratcher,
The Law of Trusts, (Vol. IIA 4 th ed.1987) § 172 explains:
A trustee is under a duty to the beneficiaries of the trust to keep clear and
accurate accounts. His accounts should show what he has received and what
he has expended. They should show what gains have accrued and what losses
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have been incurred on changes of investments. If the trust is created for
beneficiaries in succession, the accounts should show what receipts and what
expenditures are allocated to principal and what are allocated to income.
If the trustee fails to keep proper accounts, all doubts will be resolved against
him and not in his favor ...
Not only must the trustee keep accounts, but he must render an accounting
when called on to do so at reasonable times by the beneficiaries. Where there
are several beneficiaries, any one of them can compel an accounting by the
trustee. The fact that a beneficiary has only a future interest ... does not
preclude him from compelling the trustee to account.
Id. (emphasis added).
George Bogert, The Law of Trusts and Trustees, (Rev.2d ed.1983) § 961 takes a similar
view:
[T]he beneficiary is entitled to demand of the trustee all information about
the trust and its execution for which he has any reasonable use....
If the beneficiary asks for relevant information about the terms of the trust, its
present status, past acts of management, the intent of the trustee as to future administration,
or other incidents of the administration of the trust, and these requests are made at a
reasonable time and place and not merely vexatiously, it is the duty of the trustee to give the
beneficiary the information for which he has asked.
Both Scott, supra, and Bogert, supra, cite numerous cases in support of the rule that a
remainder beneficiary is entitled to an accounting. Scott, supra, § 172 at 454; Bogert, supra, §
973.
Restatement (Second) of Trusts §172, comment (b) states the rule in like terms:
The beneficiary may by a proper proceeding compel the trustee to render to
the proper court an account of the administration of the trust.... The trustee
may be compelled [to] account not only by a beneficiary presently entitled to
the payment of income or principal, but also by a beneficiary who will be or
may be entitled to receive income or principal in the future.
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Maryland law is consistent with the law of other states. The Court of Appeals
liberally construed the class of those beneficiaries who have a right to an accounting in the
case of In Re Clarke’s Will, 198 Md. 266, 81 A.2d 640 (1951). There, a remainder beneficiary
sought an accounting and declaratory relief and alleged that the trustee planned to sell a farm
that was a trust asset and apply the proceeds for the benefit of her husband, an income
beneficiary of the trust. The Court held that the contingent remainderman had standing to
seek an accounting, and explained: “If the petitioner has any interest at all he is entitled to
invoke the court's protection.” Id. at 273, 81 A.2d 640; see also Baer v. Kalm, 131 Md. 17, 101
A. 596 (1917).
In Shipley v. Crouse, 279 Md. 613, 370 A.2d 97 (1977). the Court of Appeals articulated
the general rule:
While ... in the ordinary case, beneficiaries are entitled to receive ‘complete and
accurate information as to the administration of the trust’ and ‘to know what
the trust property is and how the Trustee has dealt with it,’ this is not absolute,
if the trustee renders periodic reports showing collection of income and
disbursements, if the trustee is acting in good faith and is not abusing his
discretionary powers.
Id. at 625, 370 A.2d 97 (citations omitted). The Shipley Court did not indicate that the rights
of the plaintiffs, who were remaindermen, were more restricted because they had no
immediate possessory interest. The statement of the rule in Shipley, however, was dictum
because the plaintiffs did not obtain the disclosures they desired. The Court held that a
trustee's duty to account did not require that the trustee disclose the specifics of delicate
negotiations with a potential buyer regarding the sale of a business owned by the trust,
especially when remaindermen had previously expressed their agreement that the business be
sold. Id. at 625-26, 370 A.2d 97.
Appellees argue that section 10.2 of the will relieves them from any obligation to
account to a remainder beneficiary. This section allows the trustee to provide an accounting
at any time, and provides that if such accounting is approved in writing by the then income
beneficiaries, then the trustee is discharged with respect to the matters covered by the
account. Appellees would have us apply this section to modify the common law obligation
of a trustee to account.
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To our knowledge, no Maryland appellate decision has addressed the extent to which
a decedent or testator may limit the common law duty of a trustee to account in a court of
equity. Nor do we find any statute or rule, addressing this point. Bogert, supra, asserts that a
trust beneficiary has a right to an accounting, notwithstanding language in the trust
purporting to limit its obligation to account:
A [testator] who attempts to create a trust without any accountability in the
trustee is contradicting himself. A trust necessarily grants rights to the beneficiary
that are enforceable in equity. If the trustee cannot be called to account, the
beneficiary cannot force the trustee to any particular line of conduct with regard
to the trust property or sue for breach of trust. The trustee may do as he likes
with the property, and the beneficiary is without remedy. If the court finds that
the settlor really intended a trust, it would seem that accountability in chancery or
other court must inevitably follow as an incident. Without an account the
beneficiary must be in the dark as to whether there has been a breach of trust
and so is prevented as a practical matter from holding the trustee liable for a
breach.
Bogert, supra, § 973 at 467. In the present case we need not decide this interesting issue
because we do not interpret section 10.02 in light of the will as a whole, to limit the trustees'
obligation to account under the present circumstances.
When interpreting a will, we must gather the intention of the testator from the
language of the entire will. See LeRoy v. Kirk, 262 Md. 276, 280, 277 A.2d 611 (1971). Further,
we must construe the provisions of a will to be consistent, rather than to be in conflict. See
Veditz v. Athey, 239 Md. 435, 448, 212 A.2d 115 (1965).
When section 10.02 is considered in light of section 10.08, the former cannot
reasonably be construed to deny appellant an accounting based on Harriett's consent to
some prior accounting. Section 10.08 provides:
Notwithstanding any other provision hereunder, no Trustee hereunder shall have
a vote or otherwise participate in any decision regarding whether, and to what
extent, any discretionary payment of principal or interest shall be made or
allocated to or for such Trustee's personal benefit or to or for the benefit of any
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person for whose support such Trustee may be legally obligated. Any such
decision shall be made by the co-Trustee then serving, or if there is no such coTrustee, then the Trustee shall appoint a co-Trustee to make such decision.
Clearly, if Harriett cannot participate in a decision to distribute principal to her, then
her consent to such distribution cannot be considered binding upon a remainderman whose
interest is adversely effected. Cf. Madden v. Mercantile-Safe Deposit & Trust Co.,, 27 Md. App.
17, 339 A.2d 340 (1975) (any laches which could have been chargeable to income beneficiary
regarding misconduct of trustee cannot be binding upon the remaindermen). Since
appellant's claim for accounting is based upon his contention that principal amounts were
improperly distributed to Harriett, section 10.02 of the will does not bar his suit. See also
discussion in Section IB of this opinion.
Nor do we interpret the provision in section 10.02 of the will that the trustees “shall
be excused from filing any account with any court” to mean that the testator intended to
remove the jurisdiction of a court of equity to require an accounting upon the reasonable
request of a beneficiary. See Salter v. Salter, 209 Ga. 90, 70 S.E.2d 453, 458 (1952). See also
Bogert ,supra, § 973.
Appellees suggested at oral argument that appellant was not entitled to an accounting
in this proceeding because a court can only require an accounting if it assumes jurisdiction
over the trust, and appellant did not follow the procedure under Maryland Ruel 10-501 to
request that the court do so. We do not agree that a petition for assumption of jurisdiction
pursuant to Rule 10-501 is required in order that a court order an accounting, and find Baer,
supra, instructive. In Baer the Court held that the trustee's mere refusal to account did not
justify his removal, but that if an accounting were necessary in order to ascertain whether the
trustee is executing the trust fairly and without abuse of the discretionary power reposed in
him, a Court of Equity, upon being applied to, should order such information to be given;
but until that is done and it is found that the trustee is not administering the trust in good
faith, or is abusing the discretionary power granted him under the will, the Court should not
against his wishes, assume supervisory jurisdiction of the trustee's discretionary powers. Baer,
131 Md. At 29, 101 A. 596. What we glean from Baer is that seeking and obtaining an
accounting will sometimes precede a request for a court to assume jurisdiction over a trust,
and the results of the accounting may be the “reason for seeking the assumption of
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jurisdiction by the court ...” required under Rule 10-501. Thus, we hold that appellant was
not required to petition pursuant to Rule 10-501 in order to obtain an accounting.
In sum, we hold that appellant was entitled to an accounting during the life of
Harriett and at her death, notwithstanding the language in section 10.02 of John's will.
B.
The Information Furnished by the Trustees
The trial court found that the documents provided by appellees in April 1997, were
sufficient to meet any obligation to account because they provided the recap, brokerage
statements from the firms holding the estate's securities, and a list of payments and receipts
for the two-year period of the Family Trust. We do not agree with the trial court's
conclusion that this information sufficed, because appellees still failed to provide certain
critical information. This information is separated by category and discussed below.
i.
Allocations of Expenses and Receipts Between Income and Principal
One of appellant's complaints about the information furnished by appellees is that
there was no allocation of receipts and expenses to either trust income or trust principal as
required under Md.Code (1974, 1991 Repl.Vol.), §§ 14-201 et seq. of the Estates and Trusts
Article (“Principal and Income Act”). Appellant's expert witness testified that, based on the
records provided, it appeared that the trustees had made no allocation; and therefore, the
burden of all expenses was borne by the remainder interest. Section 14-202 of the Principal
and Income Act provides in pertinent part:
(a) A trust shall be administered with due regard to the respective interests of
income beneficiaries and remaindermen. A trust is so administered with respect to
the allocation of receipts and expenditures if a receipt is credited or an expenditure
is charged to income or principal or partly to each: (1) In accordance with the
terms of the trust instrument, notwithstanding contrary provisions of this subtitle;
(2) In the absence of any contrary terms of the trust instrument, in accordance
with the provisions of this subtitle; ...
Id. at § 14-202. The remaining sections of the Principal and Income Act set forth detailed
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rules as to how a trustee should allocate receipts and expenses between the income
beneficiary and the remaindermen.
The parties have not directed us to, nor have we found, any clause in John's will that
would make the Principal and Income Act inapplicable. Further, a trustee's obligation to
make allocations between income beneficiaries and remaindermen is an obligation well
recognized in common law. See Berlage v. Boyd, 206 Md. 521, 532, 112 A.2d 461 (1955); Scott,
supra, § 172 at 452, and cases collected therein (“If the trust is created for beneficiaries in
succession, the accounts should show what receipts and what expenditures are allocated to
principal and what are allocated to income.”); Bogert, supra, § 970 at 377–78.
The documents that appear in the record do not make any allocations of receipts or
expenses to principal or income. Income tax returns do not suffice for this purpose because
federal law regarding what is taxable income, and what expenses are deductible from income,
differs from determination of income and principal under the Principal and Income Act.
Calvin H. Cobb, III, a lawyer specializing in estate and trust law, testified that he had
reviewed all of the documents furnished by appellees, and was unable, based on that
information, to reconstruct an accounting that made allocations between income and
principal. Mr. Cobb testified that he “tried to recreate based on this information a proper
accounting that would allocate income and principal [but there was] information that didn't
reconcile....” He observed that “it appears that rather than distributing net income to
[Harriett], there was no effort to charge expense to income. They instead distributed gross
income to [Harriett].”
A major theme advanced by appellees in defense is that appellant, in presentation of
his case, was unable to demonstrate precisely where and how the trustees failed to follow
their obligations under applicable law or John's will. “[T]he burden of proof on the issue of
breach of trust is not initially on the fiduciary....” Goldman v. Rubin, 292 Md. 693, 713, 441
A.2d 713 (1982). The burden, however, shifts to the trustee once the beneficiary has
introduced a certain quantum of proof:
[T]he person who challenges the conduct of a trustee, must first allege that the
trustee has a duty and has been derelict in the performance of this duty, and offer
evidence in support of this allegation. Then, and not until then, does the trustee
have the burden of rebutting the allegation. In the absence of such proof, there is
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no duty on the trustee to prove a negative: i.e., that he has not been derelict in
the performance of his duties.
Id. (quoting Lopez v. Lopez, 250 Md. 491, 501, 243 A.2d 588 (1968); see also Md. Nat’l Bank v.
Cummins, 322 Md, 570, 581-82, 588 A.2d 1205 (1991); Wood v. Honeyman, 178 Or. 484, 169
P.2d 131, 162 (1946); Scott, supra, § 172 at 452 (“If the trustee fails to keep proper accounts,
all doubts will be resolved against him and not in his favor.”).
We have reviewed all of the documents provided by appellees to appellant in
response to appellant's request for an accounting. Based on our review, in conjunction with
the testimony of Mr. Cobb, we conclude that appellant met his initial burden to show that
appellees breached their fiduciary duties by failing to make any allocations between principal
and income. Accordingly, it was incumbent upon appellees to come forward and explain this
apparent failure. Without such explanation, the trial court should not have granted the
motion for judgment on Count I.
ii.
Failure to Account for Non–Funding of Marital Trust: Marital Trust Bequest of
$80,223 Pursuant To Formula In Will
Another deficiency asserted by appellant regarding the information furnished by
appellees relates to the Marital Trust. The documents initially provided to appellant showed
a $80,223 distribution to the Marital Trust from the estate, but nothing about a Marital Trust
thereafter. After a second request by appellant's counsel, appellees advised counsel that this
trust “was never established since the total assets that were available ... to be distributed from
[John's estate] did not exceed $600,000.” No explanation was then offered regarding the
discrepancy between appellees' non-funding of the Martial Trust and the $80,223
distribution shown on both the estate's administration account and John's federal estate tax
return.
The assets held in John's estate may well have decreased in value between the date of
John's death and the date assets were distributed from his estate. If such occurs, however,
the personal representative must follow the funding formula set forth in the will to
determine how the decrease is allocated between the Trusts. We explain below.
The size of the bequests to the Marital Trust and the Family Trust is determined by
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formula. The formula is tied to the amount of assets that can pass free of tax to a decedent's
heirs under federal estate tax law by application of an individual's “unified credit.” I.R.C. §
2001 (1998). Expressed in non-technical terms, the federal tax law allows an individual to
pass to his or her heirs, free of tax, assets totaling no more than $600,000 in value. For
purposes of the federal estate tax, the value of each asset is determined as of the date of the
decedent's death. When the values of the assets change during estate administration, at the
time of distribution, the personal representative must look to the will for instructions
regarding how to value those assets. In the absence of instructions, a Maryland statute
governs. See Md.Code (1974, 1991 Repl.Vol.), § 11-107(2) of the Estates and Trusts Article
(“E & T”).
John's will did provide such instruction—section 7.02 requires the assets distributed
to the Marital Trust shall be selected in such manner that the cash and other property
distributed will have an aggregate fair market value fairly representative of the distributee's
proportionate share of the appreciation or depreciation in the value to the date or dates of
distribution of all property then available for distribution. Any property assigned or
conveyed in kind to satisfy the aforegoing bequest shall be valued for that purpose at the
value thereof as finally determined for Federal Estate Tax purposes.
John's personal representatives held the responsibility to determine how to allocate
the residuary estate between the Marital Trust and the Family Trust. Under the funding
formula set forth in section 7.02, if the estate assets decrease in value, the Marital Trust
would be diminished on a pro rata basis with the Family Trust and would absorb no more
than its pro rata share of such decrease. In light of this mandatory directive we do not see
how the Marital Trust could be legitimately “wiped out” by a decrease in overall value, when
the Family Trust bequest remained intact.
The discrepancy regarding the funding of the Marital Trust is not explained by
appellees' assertion that the “total assets that were available ... to be distributed ... did not
exceed $600,000.” Proof of the discrepancy was sufficient to place the burden on the
trustees to offer a better explanation and accounting with regard to this issue. Accordingly, it
was error for the trial court to enter judgment in favor of appellees in appellant's suit for
such accounting.
Appellees suggest that the discrepancy regarding funding of the Marital Trust is only
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of theoretical concern because appellant is the remainderman under both the Marital and
Family Trusts. We do not agree with this analysis because the terms of John's will differ with
respect to principal distributions authorized to be made from each of the Trusts. Under
section 8.03 of John's will, Harriett could withdraw annually the “greater of (a) Five
Thousand Dollars ($5,000) or (b) Five Percent (5%) of the value of the principal of the
Family Trust.” By contrast, she had no right of withdrawal from the Marital Trust. Thus, if
the Family Trust were funded with assets that properly belonged to the Marital Trust, then
the five percent of the trust subject to Harriett's withdrawal right became correspondingly
larger. The record suggests that Harriett exercised this right in full. Thus, it appears that
some assets that should have remained in trust for Bill were, in fact, distributed to Harriett.
The trial court rested its decision on the Marital Trust issue in part upon the
following language in John's will:
[The trustee] shall have the power to make any election required to be made to
qualify the Marital Trust for the federal estate and/or gift tax marital deduction. If
the federal estate tax laws applicable to my estate permit a partial election to be
made or permit such an election with respect to a specific portion of the Marital
Trust, my Trustee may in its discretion make such election with respect to less than
all the Marital Trust, and such portion shall be treated for all purposes as a specific
portion of [the Marital] Trust and as a separate Trust share. My Trustee shall not
be liable for any decision made in good faith and with reasonable diligence with
respect to such election.
The discretion accorded the trustees by this section to make a “partial election”
allows the trustees to “qualify the Marital Trust for the federal estate tax marital deduction.”
Such partial election will have an impact on the amount of the Marital Trust that qualifies for
the marital deduction, but it does not cause any portion of the Marital Trust to be merged
with the Family Trust. As the clause indicates, if a partial election is made, the portion
elected to so qualify, “shall be treated for all purposes as a specific portion of this Trust and
as a separate Trust share.” The trustees' power to create two separate trusts which together
comprise the Marital Trust is not equivalent to the power to transfer assets from the Marital
Trust to the Family Trust. Harriett's power to withdraw principal extends only to the Family
Trust, and does not extend to the Marital Trust, even if divided.
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Appellees also suggest that because Harriett bequeathed her estate to trusts for the
benefit of Bill's children, appellant's concern about the size of the Trusts is only theoretical.
Regardless of any emotional appeal that this contention may have, it has no legal merit in its
own right. To the extent that assets were improperly distributed to Harriett, and passed to
trusts under her will, Bill is denied the right to those assets, even though his children receive
an interest as trust beneficiaries.
Although we have expressed our disagreement with appellees' explanation, offered in
their April 18, 1997 letter to appellant, for why the Marital Trust was not funded, we do not
now hold that John's estate was distributed improperly. We think that such decision must be
reserved until appellees provide a full accounting of how they applied the formula in the will
to distribute assets to the Marital Trust and Family Trust, respectively. We do hold that, in
the absence of a better explanation, the trial court should not have granted the motion for
judgment on Count I.
Summary Regarding Count I
In sum, we conclude that appellant produced sufficient evidence to meet his initial
burden to show a specific breach of duty by appellees regarding their failure to account, their
failure to fund the Marital Trust, and improper delegation of their discretionary power to
distribute principal and to select assets to satisfy Harriett's right of withdrawal. Therefore,
the trial court erred in granting judgment against appellant at the end of his case. Rather, the
trial court should have required appellees to present their case and rebut or explain the
evidence presented by appellant. We remand for that purpose.

12.2 To Inform
Cook v. Brateng, 262 P.3d 1228
BRIDGEWATER, P.J.
¶ 1 A. Diane Brateng appeals the trial court's division of Elmer Cook's trust
property. We hold that Diane, who was both a beneficiary and trustee of Elmer's trust, did
not breach her fiduciary duties when she: (1) did not inform John Cook, her brother and also
a beneficiary of Elmer's trust, that she decided to claim and defer charges against Elmer's
estate for providing Elmer's care; and (2) decided not to encumber Elmer's house to pay for
his care. We reverse the trial court's finding that Diane breached her fiduciary duties, hold
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that she is entitled to reasonable compensation for providing Elmer's care, and remand to
determine her compensation and to redistribute the property. We hold that Diane is entitled
to funds she spent to repair and remodel a portion of Elmer's home, and we do not disturb
the trial court's use of a 2007 appraisal it used to determine the value of Elmer's home.
FACTS
¶ 2 The following facts are undisputed. Diane and John are siblings. In November
1995, their father, Elmer, executed a living trust, naming himself and Diane as trustees.
Elmer's health deteriorated; two years later, in November 1997, he was declared
incompetent, and Diane became sole trustee of his trust.
¶ 3 With Elmer declared incompetent, the trust required Diane, the sole remaining
trustee, to apply all trust property exclusively for Elmer's benefit. Specifically, the trust
required Diane to “provide as much of the principal and net income of [the] trust as is
necessary or advisable, in [Diane's] sole and absolute discretion, for my health, support,
maintenance, and general welfare.” CP at 36. The trust also required Diane to make
information available to the beneficiaries:
My trustee shall report, at least semiannually, to the beneficiaries then eligible to
receive mandatory or discretionary distributions of the net income from the
various trusts created in this agreement all of the receipts, disbursements, and
distributions occurring during the reporting period along with a complete
statement of the trust property.
CP at 60.
Upon Elmer's death, the trust directed Diane, as the trustee, to divide all remaining
trust property among herself, John, the Salvation Army, and the Finnish Assembly of God
Church. The trust allocated to each Diane and John a 9/20th share and to each charity a
1/20th share. The trust also directed Diane to distribute the home to herself, “AS PART
OF, AND NOT IN ADDITION TO, that share of [the] trust distributed to [Diane].” CP at
46.
¶ 4 In November 1997, after Elmer was declared incompetent, Diane decided to
move Elmer from his home in Ilwaco, Washington, into her home in Kirkland, Washington,
where she could more easily care for him. Elmer died in January 2000.
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¶ 5 During the time Diane cared for Elmer from November 1997 to January 2000,
she used $59,176.67 from the trust's liquid funds to pay for Elmer's medical expenses and
personal expenses, as well as maintaining, repairing, and remodeling the Ilwaco home. Diane
spent $20,319.75 of the trust funds to repair water damage to the Ilwaco home and to
remodel its kitchen. At the time of Elmer's death, the trust had $16,439.62 in liquid funds
remaining. The only other remaining trust asset was Elmer's Ilwaco home.
¶ 6 Diane kept meticulous records of her time and expenses related to caring for
Elmer and her time and expenses related to driving from Kirkland to Ilwaco. She carefully
recorded her time spent caring for him from 1996 to 1997—before she moved him to
Kirkland—and she recorded her time spent caring for him while he lived with her in
Kirkland as “24 hour In-home Care.” Ex. 26. She also kept track of the fuel used to drive to
Ilwaco, her meals along the way, and the cost per mile. Finally, she recorded bills that she
personally paid for Elmer, recording the exact amount and method of payment. Diane's
claim against the estate for acting as Elmer's care giver totaled $142,171.10.
¶ 7 Although Diane kept these meticulous records, she did not disclose her intention
to claim reimbursement to John until he filed suit and requested an accounting. Before
Elmer's death, Diane never discussed with John her expenses as a care giver, the value of her
services as a care giver, or her decision not to encumber Elmer's Ilwaco house to pay for his
care.
¶ 8 John filed suit against Diane in October 2001, which led to mediation and
arbitration under the “Trust and Estate Dispute Resolution Act”. John appealed the
arbitrator's decision and requested a trial de novo. The trial court issued a memorandum
opinion on June 20, 2008, followed by findings of fact and conclusions of law on May 26,
2009.
¶ 9 The trial court concluded that Diane, as trustee of her father's estate, had a duty
to inform John that (1) she decided to claim and defer charges against Elmer's estate for
providing Elmer's care, and (2) she decided not to encumber Elmer's Ilwaco house to pay
for Elmer's care. The court further concluded that she breached her fiduciary duties and,
thus, could not compensate herself for providing Elmer's care. The trial court awarded the
Ilwaco house to Diane, but gave John a 9/20th interest in its 2007 appraised value. The
court also awarded Diane a credit for one-half the value of a property adjacent to the Ilwaco
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house that is not part of this appeal.
ANALYSIS
I. DUTY TO INFORM
¶ 10 Diane argues that she did not have a duty to inform John that she was claiming
and deferring her charges for providing Elmer's care until his death because neither the trust
nor the applicable statutes required her to provide her brother with accounting statements.
She also argues, for the same reason, that she did not have a duty to inform John that she
decided to refrain from encumbering the Ilwaco house to pay for Elmer's health costs. We
agree.
¶ 11 A trustee, as a fiduciary, owes beneficiaries the “highest degree of good faith,
care, loyalty and integrity.” Esmieu v. Schrag, 88 Was. 2d 490, 498, 563 P.2d 203 (1977). “It is
the duty of a trustee to administer the trust in the interest of the beneficiaries.” Tucker v.
Brown, 20 Wash.2d 740, 768, 150 P.2d 604 (1944). A trustee's duties and powers are
determined by the terms of the trust, by common law, and by statute. In re Estate of Ehlers, 80
Wash.App. 751 757, 911 P.2d 1017 (1996). At common law, Washington courts have
defined a trustee's duty of care, skill and diligence to be that degree of care, skill and
diligence that an ordinary prudent man exercises in similar affairs. In re Nontestamentary Trust
of Parks, 39 Wash.2d 763, 767, 238 P.2d 1205 (1951); Monroe c. Winn., 16 Wash.2d 497, 508,
133 P.2d (1943).
¶ 12 Diane first contends that the trust did not require her to provide John with an
accounting during Elmer's life. Without any analysis, she cites the following language of the
trust to support her contention:
My Trustee shall report, at least semiannually, to the beneficiaries then eligible to
receive mandatory or discretionary distributions of the net income from the various
trusts created in this agreement all of the receipts, disbursements, and
distributions occurring during the reporting period along with a complete
statement of the trust property.
CP at 60 (emphasis added); Br. of Appellant at 14. The crux of her argument is that the trust
language does not require Diane to provide John with an accounting because he was not
“eligible” as a remainder beneficiary to receive distributions. CP at 60.
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¶ 13 We ascertain a settlor's intent and purpose from the four corners of the trust
instrument, construing all of its provisions together. Templeton v. Peoples Nat’l Bank, 106
Wash.2d 304, 309, 722 P.2d 63 (1986). Here, Diane had sole and absolute discretion to use
the trust assets to provide for Elmer if he was incapacitated, as article four, section 3 of the
trust stated:
My Trustee shall provide as much of the principal and net income of my trust as
is necessary or advisable, in its sole and absolute discretion, for my health,
support, maintenance, and general welfare.
CP at 36. Only the trust property not distributed to Elmer during his lifetime was to be
divided between Diane and John as beneficiaries. Neither Diane nor John was eligible to
receive their distributions during Elmer's lifetime, as the clear intent of the trust instrument
was to provide for his needs. Therefore, any mandatory accounting was primarily intended
to benefit Elmer, as the sole income beneficiary; we agree with Diane that the trust did not
require her to report receipts, disbursements, and distributions to John while Elmer was still
living. The trust required Diane to provide Elmer, as the sole income beneficiary, with an
accounting only upon distribution. John does not argue that Diane failed to report to Elmer.
¶ 14 Diane also correctly notes that the law did not require her to provide John with
an accounting. Under RCW 11.106.020, a trustee must provide at least an annual accounting
to “each adult income trust beneficiary ... of all current receipts and disbursements.” In
contrast, any beneficiary, including one holding only a present interest in the remainder of a
trust, may petition the court for an accounting. RWC 11.106.040, see Nelsen v. Griffiths, 21
Wash.App. 489, 493, 585 P.2d 840 (1978); see. Lastly, a trustee has a common law duty to
give a beneficiary, upon his reasonable request, complete and accurate information about the
nature and amount of trust property. Tucker, 20 Wash.2d at 769, 150 P.2d 604. Here, because
John was not an income beneficiary, RCW 11.106.020 did not compel Diane to provide him
with an accounting. Because John never petitioned the court for an accounting, RCW
11.106.040 did not compel Diane to provide an accounting. And, finally, because John never
requested an accounting from Diane, she did not have a common law duty to provide him
with such accounting.
¶ 15 But determining that Diane was not required to provide an accounting is not
dispositive of John's issues because a mandatory accounting would not have disclosed
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Diane's decision to defer charges and to refrain from encumbering the Ilwaco house during
her father's lifetime. Here, any accounting would have revealed only those receipts and
disbursements actually made. RCW 11.106.020. The plain language definition of these terms
suggests that a trustee need only provide an accounting for transactions actually paid from
the trust. Future contemplated transactions that have not yet occurred would not be shown
on an accounting. Thus, because mandatory accounting would not have disclosed Diane's
decisions to defer payment for her services rendered on her father's behalf, we turn to the
more general question of whether Diane had a duty to inform John of how she was
managing the costs associated with Elmer's care.
¶ 16 A trustee's duty “includes the responsibility to inform the beneficiaries fully of
all facts which would aid them in protecting their interests.” Allard v. Pac. Nat’l Bank, 99
Wash.2d 394, 404, 663 P.2d 104 (1983) (citing Esmieu, 88 Wash.2d at 498, 563 P.2d 203).
“That the settlor has created a trust and thus required the beneficiaries to enjoy their
property interests indirectly does not imply the beneficiaries are to be kept in ignorance of
the trust, the nature of the trust property, and the details of its administration.” Allard, 99
Wash.2d at 404, 663 P.2d 104. A trustee's duty includes the responsibility to inform the
beneficiaries periodically of the status of the trust, its property, and how the property is
being managed. Allard, 99 Wash.2d at 404, 663 P.2d 104. “If the beneficiaries are able to
hold the trustee to proper standards of care and honesty and procure the benefits to which
they are entitled, they must know of what the trust property consists and how it is being
managed.” Allard, 99 Wash.2d at 404, 663 P.2d 104.
¶ 17 Allard holds that a trustee has a duty to inform beneficiaries about management
of the trust that significantly affects their interest or, put differently, that a trustee breaches
its duty to inform when it withholds information that would prejudice the beneficiaries.
Allard, 99 Wash.2d at 404-05, 663 P.2d 104. In Allard, Pacific Bank held in trust for certain
beneficiaries a quarter block of property in downtown Seattle. Allard, 99 Wash.2d at 396, 663
P.2d 104. The property was the sole trust asset. Allard, 99 Wash.2d at 396, 663 P.2d 104.
Under the trust provisions, Pacific Bank had full power to manage trust assets according to
the judgment and care that “prudent men exercise in the management of their own affairs.”
Allard, 99 Wash.2d at 396, 663 P.2d 104. In 1978, Pacific Bank sold the downtown property
before informing the beneficiaries of the sale more than a month later. Allard, 99 Wash.2d at
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397, 663 P.2d 104.
¶ 18 The beneficiaries brought suit against Pacific Bank for breach of its fiduciary
duties, arguing on appeal that Pacific Bank had a duty to inform them before selling the
property. Allard, 99 Wash.2d at 401, 663 P.2d 104. Our Supreme Court agreed with the
beneficiaries and held that Pacific Bank had a duty to inform them of the sale. Allard, 99
Wash.2d at 405, 663 P.2d 104. The court reasoned that, although Pacific Bank could manage
trust assets without seeking the beneficiaries' consent, and although the trust provisions
required Pacific Bank to furnish only an annual statement for the prior year's investments,
Pacific Bank, as part of its fiduciary duties, had to inform the beneficiaries of all material
facts of the downtown Seattle property transaction before the sale because such a sale was a
nonroutine transaction that significantly affected the trust estate and the beneficiaries'
interests. Allard, 99 Wash.2d at 403-05, 663 P.2d 104; cf. In re Estate of Ehlers, 80 Wash.App.
751, 758-59, 911 P.2d 1017 (1996). (holding that a trustee does not breach her duty of care in
failing to provide timely mandatory accounting when the trustee eventually provides
accounting and the untimeliness does not cause any loss to any beneficiary).
¶ 19 Here, Diane had a duty to inform John about matters that would significantly
affect his interests. But unlike in Allard in which selling the only trust asset significantly
affected the beneficiaries' interest, providing Elmer's care was a routine practice to fulfill the
trust's primary purpose, which, therefore, did not significantly affect John's remainder
interest. In fact, the trust specifically gave Diane authority to “provide as much of the
principal and net income of my trust as is necessary or advisable, ,in [her] sole and absolute
discretion, for my health, support, maintenance, and general welfare.” CP at 36. John could
also reasonably expect that his ailing father, declared incompetent by two physicians and
aged 95 at the time of his death, would require full-time care, which care could consume
substantial portions, if not all, of the trust's assets.
¶ 20 Because the trust clearly provided for Diane to spend any amount of trust assets
to care for Elmer, John suffered no loss whether Diane planned to defer the costs and
compensate herself in the future or hire a care giver who she paid during Elmer's lifetime; he
could reasonably expect those types of expenses on behalf of his incompetent and
dependent father and he knew that the trust provided that Diane could pay for those
expenses in her sole discretion. We hold that Diane had a duty to inform John about
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significant matters that affected his beneficial interest in the estate assets but that she did not
breach her fiduciary duty in failing to inform John about how she was managing the routine
expenses associated with Elmer's care, as John was not prejudiced by her conduct. Nor did
Diane breach her duty to inform John of her management of the Ilwaco property when,
without telling John, she decided not to encumber the Ilwaco house for the cost of their
father's care.
¶ 21 The trust divided the remaining estate assets equally to Diane and John in
9/20th shares, with the Ilwaco home left to Diane “as part of, and not in addition to ” her
9/20th share. CP at 46 (emphasis added)**1234 (capitalization omitted). If the value of the
house exceeded Diane's 9/20th share of the remaining estate, Diane had the option of
purchasing the house for any amount of value exceeding her 9/20th share of the entire
estate, in effect, giving John cash payment for his interest in the estate. If Diane declined to
purchase the house, the property would pass as if Elmer had died intestate.
¶ 22 It is inconsequential whether Diane took the money from the trust during her
father's lifetime and encumbered the house at that time to pay herself or whether she
deferred her claim for reimbursement and refrained from encumbering the house. Diane and
John each had a remainder interest in the estate. If Elmer's needs during his lifetime
exceeded the trust's liquid funds, Diane would necessarily have had to encumber the Ilwaco
home to pay his additional expenses. If the liquid trust funds were depleted, John and Diane
would be entitled to a 9/20th share of the remainder of their father's estate, here, the Ilwaco
house, and Diane could purchase the house and pay John his 9/20th interest. Thus,
depleting the trust's liquid funds during her father's lifetime or delaying her payment until
after his death did not change the fact that, with those funds depleted, Diane would have
only the option to purchase the house.
¶ 23 Further indication that John did not suffer any prejudice is that he failed to
object to Diane's decisions at any point before Elmer's death, even though he had reason to
know that she was maintaining the Ilwaco home, that she was Elmer's care giver, and that
she would charge the estate for her care giving. John lived on property adjoining Elmer's
Ilwaco home and saw Elmer visit when Diane took him there. Diane also generally
maintained the Ilwaco home and undertook repairs for water damage.
¶ 24 John also was on inquiry notice that Diane would charge the estate for caring
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for Elmer, as she had absolute authority to pay for his “health, support, maintenance, and
general welfare.” CP at 36. The trust had paid a nurse to care for Elmer before Diane took
him into her home and care. When Diane started caring for him, it was certainly foreseeable
that she would reasonably charge for the personal services she rendered. But John never
took care of his father and never inquired about whether Diane was going to charge the
estate for her care. John's failure to object, even though he had reason to know that Diane
was caring for Elmer and that she would reasonably charge the estate for her services, belies
his assertion now that he suffered harm as a result of her decisions.
¶ 25 We hold that Diane did not have a duty to inform John that she decided to
claim and defer charges against Elmer's estate. Nor did she owe him a duty to inform him
that she decided to refrain from encumbering the Ilwaco home to pay for Elmer's care.
II. CARE–GIVING COMPENSATION
¶ 26 Diane next argues that under both the trust and the applicable statutory
authority, she had authority to pay herself “as trustee” for providing Elmer's care. Br. of
Appellant at 17, 29. Although Diane conflates being compensated as a trustee with being
compensated as Elmer's care giver, we agree that she can recover her care-giving expenses
from the trust.
¶ 27 Diane's confusion arises from the following trust language:
My trustee shall pay itself reasonable compensation for its services as a fiduciary
as provided in this agreement, and shall reasonably compensate those persons
employed by my Trustee, including agents, auditors, accountants, and attorneys.
CP at 68. Diane understands this language to mean that a trustee may be paid reasonable
compensation for fiduciary services, and she assumes that personal care giving is within the
scope of a trustee's services. Her understanding ignores the language “as fiduciary,” which
distinguishes Diane's ability to pay herself in her fiduciary capacity from paying those who
she employs. CP at 68. Diane conflates her dual role. On one hand, she was a trustee, with
duties that included managing trust funds for Elmer's benefit and managing his needs. On
the other, she was Elmer's care giver.
¶ 28 A fiduciary is “required to act for the benefit of another person on all matters
within the scope of their relationship ... who must exercise a high standard of care in
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managing another's money or property.” Black’s Law Dictionary 702 (9th ed. 2009). While
managing Elmer's trust funds, managing his personal affairs, and managing his other needs
were within the scope of Diane's fiduciary duties as his trustee, actually providing Elmer's
personal care was not.
¶ 29 Diane's confusion of her dual roles is not fatal, however, as the trust also
requires her to “reasonably *793 compensate those persons [she] employ[s].” CP at 68. If
Diane had hired a full-time nurse to provide Elmer's health care, the trust would have
required her to use trust funds to reasonably compensate the nurse. Notably, the trust does
not prohibit Diane from compensating herself as an employee in addition to her role as
trustee. The trust's only requirement is that the compensation be “reasonable.” CP at 68. We
hold that Diane, as trustee, could compensate herself as an employee who provided for
Elmer's personal needs.
¶ 30 In addition to Diane's reasonable expenses related to caring for Elmer, she is
also entitled to reasonable compensation for her services as trustee. The trial court awarded
her $5,000 for her services as trustee. She does not challenge this finding on appeal;
therefore, we do not disturb that award. We hold that Diane is entitled to reasonable
compensation as Elmer's caregiver and remand to the trial court to evaluate
the reasonableness of the costs of the services she rendered in providing his care.
III. REPAIR OF PROPERTY
¶ 31 Diane next contends that the trial court erred in subtracting $10,000 from the
roughly $20,000 she spent to repair and remodel the Ilwaco house kitchen. We agree that
there was no reason to deduct this expenditure, as it was within her discretion to make.
¶ 32 Under the trust's express language, Diane could “hold property which is nonincome producing ... if the holding of such property is, in the sole and absolute discretion of
[Diane], in the best interests of the beneficiaries.” CP at 71. Diane also, had authority to take
any action “reasonably necessary for the preservation of real estate and fixtures comprising a
part of the trust property.” CP at 74. Based on the trust's plain language, Diane had authority
not only to keep the Ilwaco house but also to preserve it and its fixtures.
¶ 33 Webster's defines “preservation” as “the act of preserving or the state of being
preserved,” and it defines “preserve” as “to keep safe from injury, harm, or destruction ... to
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keep alive, intact, in existence, or from decay.” WEBSTER'S THIRD NEW
INTERNATIONAL DICTIONARY 1794 (2002). In the context of real estate, the plain
meanings of “preservation” and “preserve” indicate that Diane could not only maintain the
Ilwaco house, but also could use trust funds to improve the house. Preserving a house
entails keeping it as an appreciating asset.
¶ 34 Here, even though Elmer was only visiting from time-to-time, the costs
associated with maintaining the property contributed to its valuation's increase from $90,000
in 2001 to $217,000 in 2007. This increase reflects the reasonableness of expending trust
funds to maintain the asset, possibly for future use if it had to be sold or mortgaged to
provide funds to care for Elmer. Therefore, under the express trust language, we hold that
Diane had authority to repair water damage and to remodel the kitchen and the trial court
erred in reducing her interest in the remaining estate by $10,000.
IV. CONCLUSION
¶ 35 Diane did not breach any duty to inform John of how she was managing their
father's trust estate because his lack of knowledge did not cause him prejudice. She is
therefore entitled to reasonable compensation for her fiduciary actions as well as her
personal care of their father. We affirm the trial court's approval of the $59,176.67 Diane
used of the liquid trust funds during Elmer's life for her personal care and, although the trial
court may have found Diane's accounting of her personal care expenses adequate, the court
did not determine whether the total of her claimed expenses were “reasonable.” Accordingly,
we remand to the trial court to reexamine and determine whether her remaining claimed
expenses were reasonable and to award her further compensation for personal care she
provided, in accord with the terms of the trust.
¶ 36 We hold that Diane is entitled to funds she spent to repair and remodel the
Ilwaco kitchen after water damage. And we hold that the trial court properly used the 2007
appraised value of $217,000 for the Ilwaco house.
Reversed and remanded.
Problems
1. Henry’s will stated, “I leave the residue of my estate to Carrie in trust to provide for the
education of my nieces, Creola and Pandora. I trust Carrie completely, so she does not have
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to keep any accounts.” A few years after Carrie assumed her duties as trustee, Creola
suspected that Carrie was misappropriating the trust funds. Thus, Creola filed an action for
an accounting. In response, Carried stated that she was not required to give an accounting.
What result?
2. During his marriage Kevin had an affair that resulted in the birth of a child, Camille.
Kevin’s wife, Bertha, knew about Camille, but Kevin’s and Bertha’s child, Zeno was not
aware that she had a half-sister. In his will, Kevin left his entire estate in trust for the benefit
of Camille and Zeno. After Kevin died, his business partner, Mateo, assumed his role as
trustee. When Zeon discovered that her father had left Camille trust money, she became
suspicious. Hence, she asked Mateo to see a copy of the trust instrument. Mateo complied
with Zeno’s request, but he redacted the portions of the trust instrument referring to
Camille. Zeno filed an action claiming that Mateo had violated his duty to inform. What
result?
3. Gary’s will stated, “I leave my entire estate to Max in trust for the benefit of my wife,
Dena. If Dena’s remarries, the remaining trusts funds are to be held in trust for the benefit
of the Animal Rights Society.” After Gary died, Max assumed his role as trustee. Two years
after Gary died, Dena married Curtis. However, Max continued to give Dena money out of
the trust. Seven years later, the director of the Animal Right’s Society discovered that Dena
had been remarried for over nine years. The director sued Max to recover the trust money
he wrongfully paid to Dena. Max responded by pointing out that he had fulfilled his duty to
account and inform because he informed the director of all the payments he made to Dena.
According to Max, since the director did not object to his accountings in a reasonable time,
he was not liable for breaching any of his trust duties. What result?
4. Theresa was suffering from mild memory loss. Thus, Byron, Theresa’s husband,
established a trust for her benefit. According to the terms of the trust, the trustee was to
provide enough money to support Theresa. After Bryon died, the Main Bank assumed its
role as trustee. The Main Bank gave yearly accountings. Theresa signed off on all the
accountings. Later, Theresa’s friend suspected that Main Bank was not paying enough to
support Theresa. Thus, the friend hired a lawyer for Theresa to sue Main Bank for violating
its duty to support Theresa. What result?

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12.3 The Trustee’s Liability
In re Wilson, 930 N.E.2d 646
BAKER, Chief Judge.
The trust at issue herein held certain real estate that the settlor intended to be sold,
with the proceeds to be distributed to the beneficiaries. For a time, the trustee delayed selling
the real estate for valid reasons. He continued to delay to sell the property, however, until
over a year past the point at which those reasons no longer existed. His inaction constituted
a breach of fiduciary duty. His breach may have caused the corpus of the trust to suffer
significant financial harm, and his general reluctance and/or refusal to communicate with the
beneficiaries forced them to resort to litigation to find that out. Under these circumstances,
we find that the trial court did not err by ordering the trustee to pay the beneficiaries'
attorney fees, by reducing the requested trustee fees, or by reducing the amount of the
trustee's attorney fees to be borne by the trust.
Appellant-respondent Fred Monroe Wilson (Trustee) appeals the trial court's order
entering judgment in favor of appellees-petitioners Marcia Wilson Barker (Marcia), Carol
Perrine (Carol), Nicholas Barker (Nicholas), Christopher Barker (Christopher), and Sarah
Barker (Sarah) (collectively, the Objecting Beneficiaries) sustaining the Objecting
Beneficiaries' objections to the Trustee's final accounting. The Trustee argues that the trial
court erred by (1) finding that the Trustee committed multiple breaches of fiduciary duty; (2)
ordering the Trustee to pay the attorney fees of the Objecting Beneficiaries; (3) reducing the
fiduciary fees requested by the Trustee from $140,000 to $75,000; and (4) ordering that a
portion of the Trustee's attorney fees be paid by the Trustee personally.
We find that the Trustee breached duties owed to the Objecting Beneficiaries and
that the trial court properly ordered the Trustee to pay the Objecting Beneficiaries' attorney
fees, reduced the Trustee's requested fiduciary fees, and ordered that the Trust only be
responsible for a portion of the Trustee's attorney fees. We also find, however, that it was
error to order that the Trustee bear the remaining portion of his attorney fees personally.
Therefore, we affirm in part and reverse in part.
FACTS
On May 15, 1997, Elizabeth F. Wilson executed a Revocable Trust (the Trust).
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Elizabeth's three children—the Trustee, Marcia, and Carol—are the Majority Beneficiaries of
the Trust, receiving a combined 89.75% interest therein. Elizabeth's nine grandchildren,
including Nicholas, Christopher, and Sarah, share the remaining 11.25% interest equally. The
Trustee was Co–Trustee with Elizabeth until she died on July 31, 2005, at which time he
became the sole Trustee.
The Property
At the time of Elizabeth's death, the Trust held the following assets: (1) tangible
personal property, the distribution of which was governed by a list that had been prepared
by Elizabeth and incorporated into the Trust; (2) a checking account and an investment
account; and (3) an 82.795% ownership interest as a member of Wilson–Hussey Lane, LLC
(the LLC).
The LLC's primary asset was approximately 17.5 acres of real estate located in
Carmel (the Real Estate). The Trustee became the Manager of the LLC at the time of
Elizabeth's death.
At the time of Elizabeth's death, the Majority Beneficiaries also owned, as tenants in
common, Elizabeth's former residence in Carmel (the TIC Property), which is adjacent to
the Real Estate. The TIC Property held, among other things, the tangible personal property
included in the Trust.
The Loans
Almost immediately after Elizabeth's death, the Trustee was faced with issues
regarding the payment of real estate taxes and other necessary expenses on behalf of the
LLC and the TIC Property. During her lifetime, Elizabeth had personally paid these
obligations. The Trustee presented Marcia and Carol with options as to how to handle those
expenses but did not receive a response. The Trustee was concerned about protecting the
Trust's tangible personal property located in the TIC Property and the Trust's interest in the
Real Estate owned by the LLC. Accordingly, the Trustee facilitated the payment of TIC
Property and LLC expenses from the Trust's assets and accounted for and verified those
payments as loans totaling over $100,000 made by the Trust. Although the Trustee had no
promissory notes documenting the loans, he accounted for all payments in his Final
Accounting.
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The Fire
The Trust's tangible personal property was sorted and inventoried by the Trustee to
facilitate distribution to the Majority Beneficiaries pursuant to Elizabeth's list. The Trustee
also obtained an appraisal of the property. On November 17, 2005, the Majority
Beneficiaries met and the majority of the Trust's tangible personal property was distributed
at that time.
On January 23, 2006, the Objecting Beneficiaries filed a Petition for a Trust
Accounting.
On March 16, 2007, the TIC Property and remaining undistributed portion of the
Trust's personal property were destroyed as the result of a fire. The Majority Beneficiaries
submitted an insurance claim and received insurance proceeds for the damage to the
residence and the property therein.
The Real Estate
The Trust's primary asset was the Real Estate, and the Majority Beneficiaries desired,
ultimately, to sell the Real Estate and the adjacent TIC Property as a single parcel. Pursuant
to his fiduciary duty to handle all transfer tax matters arising from the Trust's assets, the
Trustee obtained an appraisal of the Real Estate and a valuation opinion from a certified
valuation analyst to propose a discounted fair market value of the Trust's ownership interest
in the LLC, primarily due to the lack of marketability in that interest.
The Trustee was concerned that the Trust would have to pay an additional 47%
federal estate tax on proceeds received in excess of the appraisal value if the Real Estate was
sold prematurely. Additionally, the Trustee was counseled not to sell the Real Estate before
the insurance claim stemming from the fire at the TIC Property was resolved. Therefore, the
Trustee decided not to distribute the Trust's LLC units to the beneficiaries or market the
Real Estate for sale until the audit review of the Trust's federal estate tax and Indiana
inheritance tax returns were finalized and the insurance claims were resolved. The IRS issued
a clearance letter in January 2007, the Indiana Department of Revenue issued a clearance
letter in May 2007, and the insurance claim was satisfied in August 2007. Shortly thereafter,
the Majority Beneficiaries met to discuss the sale of the Real Estate, at which time the
Trustee agreed that he would begin to compile marketing packets and begin the process of
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selling the Real Estate. The Trustee did not begin marketing the Real Estate for sale until
July 2008, a few weeks before a scheduled July 29, 2008, hearing on the Objecting
Beneficiaries' objections to the Final Accounting.
The Final Accounting
On March 4, 2008, the Trustee filed the Final Accounting and in March and April 2008,
the Objecting Beneficiaries filed objections to the Accounting. Following a hearing that
concluded on September 19, 2008, the parties stipulated that the Final Accounting met the
burden required under Indiana Code section 30-4-5-13 (a), meaning that the burden of
persuasion regarding the alleged instances of impropriety shifted to the Objecting
Beneficiaries. On July 6, 2009, the trial court entered an order sustaining many of the
Objecting Beneficiaries' objections. Among other things, the trial court found and concluded
as follows:
• The Trustee's use of Trust funds to pay TIC Property expenses constituted
improper commingling of assets and was a breach of trust. The trial court
specifically found fault with the lack of documentation that the payments made
from the Trust were loans.
• The Trustee's decision to loan Trust Assets to the TIC Property and the LLC
without documenting the loans violated the Statute of Frauds.
• The loans to the TIC Property and the LLC without approval of the beneficiaries
or a court order constituted self-dealing and improper conflict of interest, resulting
in a breach of trust.
• The delay in the sale of the Real Estate constituted a violation of the Trustee's
duty to preserve trust property and make trust property productive.
Appellant's App. p. 11–25.
Having found those breaches of duty, the trial court ordered the Trustee to pay the
attorney fees of the Objecting Beneficiaries, which totaled $50,375. Although the Trustee
requested trustee fees totaling $140,000, the trial court ordered that he receive only $75,000
because of the multiple breaches of duty. Furthermore, much of the time for which he
requested payment was spent defending against the objections, which he precipitated and
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which would not otherwise have been necessary to administer the trust. Finally, the trial
court found that the Trustee's attorney fees, totaling $280,000, were reasonable but that the
Estate should not have to bear the entire burden of those fees because the Trustee's failure
to communicate with his family caused much of the litigation, and the fees would not
otherwise have been necessary to administer the trust. Thus, the trial court ordered that the
Estate pay $175,000 of the Trustee's attorney fees, with the remainder to be borne by the
Trustee personally. The Trustee now appeals.
DISCUSSION AND DECISION
I. Standard of Review
When, as here, the trial court has entered an order containing findings of fact and
conclusions of law, we apply a two-step review. First, we consider whether the evidence
supports the findings, and second, whether the findings support the judgment. Hardy v.
Hardy, 910 N.E.2d 851, 855 (Ind. Ct. App. 2009). We will neither reweigh the evidence nor
assess witness credibility, considering only the evidence most favorable to the judgment. Id.
We will set aside the trial court's findings and conclusions only if they are clearly erroneous,
that is, if the record contains no facts or inferences supporting them. Id. We apply a de novo
standard of review to conclusions of law. Id.
II. Breach of Trustee's Duties
A trust is “a fiduciary relationship between a person who, as trustee, holds title to
property and another person for whom, as beneficiary, the title is held.” Ind. Code § 30-4-11(a). A breach of trust is “a violation by the trustee of any duty that is owed to the settlor or
beneficiary.” Ind. Code § 30-4-1-2(4).
Generally, a trustee bears the burden of justifying the propriety of items in a trust
account. Matter of Willey’s Trust, 443 N.E.2d 1191, 1193 (Ind.Ct. App. 1982). But when, as
here, a trustee files specific accounts and makes a prima facie showing that the accounts are
proper, the burden of persuasion shifts to the beneficiaries to show specific instances of
impropriety. Id. at 1193-94.
Solely for argument's sake, we will assume that the Trustee is correct that his
decision to loan money from the Trust to the LLC and the TIC Property was not a breach
of duty. We will turn immediately, therefore, to the trial court's conclusion that the Trustee's
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decision to delay the sale of the Real Estate breached his duties to preserve the trust
property and make the trust property productive for both the income and remainder
beneficiaries.
The record here reveals that the Trustee elected to wait to sell the Real Estate until
he received clearance letters from federal and state government agencies in an effort to avoid
incurring substantial additional transfer tax liability. Furthermore, he elected to wait to sell
the Real Estate until the insurance claim on the TIC Property was processed in an effort to
ensure that the Majority Beneficiaries received the full amount of their claims. We find that
these actions were prudently taken, well considered, and taken upon the advice of counsel.
That said, we agree with the trial court's implicit conclusion that while the Trustee
was waiting for the clearance letters and the settlement of the insurance claim, he should
have begun the process of selling the property by, among other things, taking steps to find
potential buyers and putting together marketing information about the property. Even more
compelling, the insurance claim had been settled and all clearance letters received by August
2007, but it was not until July 2008, more than a full year after receiving the last tax clearance
letter and shortly before a scheduled court hearing, that the Trustee began marketing the
Real Estate for sale. He could point to no significant steps he had taken during the
intervening months to prepare to sell the Real Estate.
Although the Trustee is correct that the Trust does not mandate the Trustee to sell
any asset, it is evident from the way in which the Trust is structured that Elizabeth intended
that the Trust assets be relatively quickly distributed and/or sold. Moreover, the Objecting
Beneficiaries made it abundantly clear to the Trustee starting in August 2005 that they
desired a quick wrap-up of the Trust and hoped that the Real Estate would be sold in a
timely fashion. Although we find that the Trustee's decision to delay the sale until after the
tax clearance letters were received and the insurance claim was settled was prudent and did
not constitute a breach of fiduciary duty, we agree with the trial court's conclusion that his
failure to prepare the Real Estate for sale during the waiting period and the extra delay of
over one year after the clearance letters were received was a breach of his fiduciary duties to
comply with the settlor's intent and to preserve the value of the Trust property.
The Trustee notes that the Trust does not actually own the Real Estate. Instead, it
owns a majority interest in the LLC, a separate entity, which owns the Real Estate. The
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Trustee argues that he could not have a duty to sell an asset the Trust does not actually own.
We find this to be a distinction without a difference. He is both the Trustee of the Trust and
the Manager of the LLC. Regardless of which proverbial hat he was wearing, it was his
responsibility to sell the Real Estate or, at least, the Trust's interest in the Real Estate. Thus,
we do not find this argument to be compelling.
III. Damages
Although the trial court did not award any specific damages to the Objecting
Beneficiaries based upon the Trustee's breaches, it ordered the Trustee to pay the Objecting
Beneficiaries' attorney fees, reduced the fees requested by the Trustee, and ordered the
Trustee to pay a portion of his attorney fees personally. The Trustee argues that all of these
actions were erroneous.
If a trustee commits a breach of trust, the trustee is liable to the beneficiaries for: (1)
any loss or depreciation in the value of the trust property as a result of the breach; (2) any
profit made by the trustee through the breach; (3) any reasonable profit which would have
accrued on the trust property in the absence of a breach; and (4) reasonable attorney's fees
incurred by the beneficiary in bringing an action on the breach. I.C. § 30-4-3-11(b). If the
trust is not harmed by any breach of trust committed by the trustee, the beneficiaries may
not complain of the breach of trust. Gavin v. Miller, 222 Ind. 459, 467, 54 N.E.2d 266, 280
(1944).
Here, the trial court found that the Objecting Beneficiaries failed to offer evidence
establishing that they suffered a financial harm—i.e., that the Real Estate depreciated in
value during the delay—as a result of the Trustee's breach. The only evidence in that regard
came from the testimony of Marcia, who is not an expert but testified that in her personal
opinion, the real estate market in Indiana was not as good as it had been three years earlier.
The trial court determined that Marcia's testimony was insufficient to establish damages, and
we agree with that conclusion.
Although we conclude that the Trust corpus, itself, suffered no harm as a result of
the Trustee's breach, the Trustee's actions, including a general reticence or refusal to
communicate with the Objecting Beneficiaries, compelled the Objecting Beneficiaries to
solve these problems in court. Put another way, the Trustee's behavior forced the Objecting
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Beneficiaries to enlist the aid of attorneys and a trial court to determine that, in fact, they had
not sustained financial harm as a result of his inaction. Under these circumstances, we find
that the trial court did not err by ordering the Trustee to pay the Objecting Beneficiaries'
attorney fees or by reducing the fees the Trustee requested based upon the breach of duty.
As for the Trustee's attorney fees, we likewise find that the trial court did not err by
ordering that the Trust pay only $175,000 of those fees. To the extent that the trial court
ordered the Trustee to personally pay the remainder of his attorney fees, however, we
disagree. Neither the trial court nor we have jurisdiction over the relationship between the
Trustee individually and his attorneys. The way in which the Trustee's attorneys choose to
collect the remainder of their fees, if at all, is not at issue in this proceeding, and we reverse
the trial court's order to the extent that it orders the Trustee to bear that burden personally.
The judgment of the trial court is affirmed in part and reversed in part.
REVIEW
The following fact pattern is included as a means of reviewing all of the issues that
arise in a trust transaction. In particular, the student should focus upon identifying all of the
breaches of trust duties.
Collaborative Learning Exercise
A codicil to Judy’s will established a trust naming her brother, Richard, as the life
time beneficiary. The will directed the trustee to terminate the trust, upon Richard’s death,
and distribute the balance of the principal and accumulated income to Judy’s three children,
their heirs and assigns.
The only asset placed in the trust was an installment real estate contract executed
between Judy and Howard in 1992 for the sale of three multi-family dwellings. Under the
installment contract, Howard was to purchase the three properties for $250.000. The three
parcels of real estate were commonly known as 155 Third Avenue South, 215 Turtle Lane,
and 122 Madison Street North. The three parcels contained twenty apartment units.
The trust instrument also directed the trustee to use $250,000 of the funds in the
estate to acquire additional rental property to add to the corpus of the trust. Judy’s will

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directed the trustee to pay Richard during his lifetime “monthly, all of the net income of the
trust, or $3000.00, whichever is greater.”
During her life time, Judy had a management company to maintain the rental
property. At that time, the property was considered to be in good condition. Judy died in
1995. A few months later, the trustee, Benjamin Taylor, accepted the duty of trustee.
Benjamin immediately began making monthly payments to Richard.
Benjamin took the $250,000 from the estate and placed it in his savings account
while he looked for rental property to purchase. Benjamin did not have experience in real
estate investment, so he asked his friend, Katherine, a real estate broker, to find property to
purchase. Katherine identified several properties and mailed Benjamin information on them.
Six months later, Benjamin met Katherine for lunch and told her that he did not
have time to sift through information about real estate. Benjamin gave Katherine a blank
check written on his account, and told her to buy the property that she felt was most
suitable. His only condition was that Katherine purchase property with high income return.
He stated, “I don’t care what the property is worth in 10 years. Richard needs the money
now.”
Katherine purchased a four-unit apartment building located at 1022 Weaver Street
for $200,000. Benjamin recorded the title to the Weaver Street property in his name. He
transferred $200,000 from his savings account into his checking account to cover the
purchase price. He left the remaining $50,000 trust money in his savings account. At the
time of the purchase the fair market value of the Weaver Street property was $150,000. The
neighborhood was revamped and the market value of the property steadily increased.
Benjamin made income payments to Richard out of the rents the trust received from the
Weaver Street property.
In 1999, Howard assigned his interest in the real estate contract to Larry. A few
months later, Larry assigned his interest to Benjamin’s daughter, Susan. The contract called
for monthly payments of $7500, and obligated Susan to make timely payments of taxes and
insurance. She was required to keep the property in good repair. When the properties were
sold to Susan, Benjamin did not personally inspect them. In addition, at that time, neither an
official inspection nor appraisal was made on the properties.
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When Susan purchased the properties, the Third Avenue and Turtle Lane properties
were deteriorating. Susan made no efforts to improve the properties. In March 2000, city
housing inspections began issuing notices of intent to “placard” the dwellings for housing
violations. Five units of the Third Avenue property were deemed unfit for human habitation
in July 2001; the entire building was cited for violations in April 2002. In September 2002,
the Turtle Lane property was placarded as uninhabitable due to problems ranging from
missing windows to leaking ceilings, exposed wiring and peeling paint. A storm blew the
roof off of the Madison Street building, but it was never repaired. Benjamin received all of
the notices, but took no action to address the problems.
Susan made the contract payments on time, but she failed to pay real estate taxes
from 1999 to 2003. In April 2003, when Benjamin was notified of the tax delinquencies, he
contacted Susan and she promised to pay the back taxes. As a result of Susan’s failure to pay
the back taxes, the Third Avenue, Turtle Lane, and Madison Street properties were sold at a
tax sale in September 2003. Benjamin received the notices of the tax sale and expiration of
the right to redeem. Benjamin took no action to redeem the property and did not insist that
Susan redeem the property.
Katherine advised Benjamin that, if he sold the Weaver Street property, he would
have enough money to redeem and repair the three properties. Benjamin rejected
Katherine’s advice because rents from the Weaver Street property were sufficient for him to
pay Richard’s monthly income. However, in February of 2004, a highway construction
project made the Weaver Street property undesirable as a rental property. The monthly rents
received from the property decreased to $800. To cut back on expenses, Benjamin allowed
the fire insurance policy on the building to lapse. In October 2004, the Weaver Street
property was destroyed by fire. In addition to the total property loss, the city assessed the
demolition costs against the trust.
In November 2004, Benjamin notified Richard that the trust’s assets were depleted,
and issued him a final monthly payment of $2000. Benjamin sold the Weaver Street lot for
$50,000. After paying off outstanding liens and expenses, he issued a lump sum payment to
Richard of $1500 in March 2005. Richard died in November 2005.
Judy’s three children did not find out about the dissolution of the trust until after
Richard’s death.
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Judy’s children have contacted your firm seeking advice about their rights and
remedies. Please analyze the relevant legal issues that arise from the facts.

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Chapter 13 - Power of
Appointments
The testator can leave property as a gift outright to a person or the testator can leave
property to a person to hold in trust for another person. Finally, the testator can leave
property to a person and give the person the authority to select the new owner of the
property. That authority is called a “power of appointment.” A power of appointment is the
right to designate the new owner of property. A power of appointment is created by stating,
“I leave my property to A in order that he may have the right to appoint the new owner.”
It is important to identify the parties to the transaction. The donor is the original
owner of the property. If a trust is involved the donor is the settlor or the testator. The
person who receives the power of appointment is the donee. The donor remains the owner
of the property until the donee exercises his power of appointment and names a new owner
of the property. Objects of the power are the pool of potential new owners of the property.
The persons the donee appoints as the new property owners are called appointees. Even
though the donee designates the appointees as the new owners of the property, those
persons take title to the property from the donor. The default takers are those persons who
take the property if the donee does not exercise the power of appointment. The property is
referred to as the appointive property. Consider the following example. In his will, Mandy
stated, “I leave my house to my son, William for life. When William dies, the house will go
to any one of my children William appoints as the new owner. If William does not appoint a
new owner of the house, the house will go to my cousin, Janice.” In the example, Mandy is
the donee; William is the donor; Mandy’s children are the objects of the power; and Janice is
the default taker. In the event the donor does not name a default taker and the donee fails to
exercise the power, the property reverts to the donor’s estate. Once the property reverts to
the donor’s estate, it goes to the takers of the donor’s residuary estate.
The two main types of powers of appointment are the general power of appointment
and the special power of appointment. When the donor creates a general power of
appointment, he does not place any restricts or conditions on the donee’s exercise of the
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power. Therefore, the donee can appoint the power to any one, including himself. There is
no specific language needed to create a general power of appointment. The trustee just has
to make sure that the exercise of the power is unrestricted. For instance the donor could
state, “I leave my house to Paul to give to any one that he chooses.” On the other hand, a
donor who creates a special power of appointment specifics certain individuals or groups as
the objects of the power or conditions the exercise of the power on certain factors. A special
power cannot be exercised in favor of the donee, the donee’s estate, the donee’s creditors or
the estate of the donee’s creditors. A special power of appointment is created when the
donor states “I leave my property to Ben to appoint to any one of my sisters that he so
chooses.” Both the general and the special power of appointment may be inter vivos or
testamentary. An inter vivos power of appointment must be exercised during the donee’s
life. The testamentary power of appointment must be exercised by the donee’s will.
Notes and Problems
1. A special power of appointment may be exclusive or non-exclusive. If the power is nonexclusive, the donee may exclude entirely one of more objects of the power. Thus, the donee
has the option of appointing all the property to one member of the class of permissible
objects, and excluding the rest. When the case involves a non-exclusive power, the donee
must appoint some amount to each of the permissible objects. The illusory appointment rule
requires that each permissible object receives a substantial portion of the appointive
property.
2. Problems
a) Gus’ will stated, “I leave the residue of my estate in trust for the benefit of Mae during her
life, the remainder as Mae shall appoint by will to any one or more of her children.” Mae
had four children, Bill, Sam, Gail, and Frank. Mae appointed all of the trust property to Gail.
Is this permissible?
b) Thomas’ will stated, “I leave my house in trust for the benefit of Billy during his life, the
remainder as Billy shall appoint by will to his children.” Billy had two children, Crystal and
Polly. Billy appointed all of the trust property to Polly. Is this permissible?
c) Penny’s will stated, “I leave my apartment complex in trust for the benefit of Sandra for
life, the remainder as Sandra shall appoint my will to my sisters.” Penny had three sisters,
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Gloria, Evon and Emma. Sandra appointed all of the trust property to Sandra’s daughter,
Josie. Is this permissible?
3. Problems
In which of the following cases has a power of appointment been created.
a) “I leave my ranch to Joe in order for him to decide to whom to give it.”
b) “I leave my hotel to Joe for the benefit of any one of my sons that he chooses
c) “I leave the residue of my estate to Joe, so that he can provide for my children.”
d) “I leave my entire estate to Joe as long as he gives it to one of my nieces.”
e) “I leave my art collection to Joe, so that he may appoint it to whomever he chooses.”
4. In most jurisdictions, a power of appointment cannot be exercised in the residuary clause
of a will. Instead of exercising the power of appointment, the donee can release the power.
The power has been released when the donee gives up the right to exercise the power by
written instrument. Once the power is released the property goes to the default taker or
reverts back to the donor’s estate.

Doggett v. Robinson, 345 S.W.3d 94
WILLIAM J. BOYCE, Justice.
Robert R. Doggett, Florence E. Pollard, Paul R. Doggett, Paul Randolph Doggett,
Jr., Mark Edward Doggett, and Matthew Joseph Doggett appeal the trial court's summary
judgment in favor of Mary Robinson,*96 as independent executor of the estate of John M.
Robinson. We reverse and remand.
BACKGROUND
I. John Doggett's Will
John Doggett executed a will prepared by attorney John M. Robinson. John Doggett
was married to his second wife, Sylvia, when he executed the will in 1983. John had four
children from his first marriage—John III, Robert, Florence, and Paul. Sylvia had one child
from a prior marriage—Beverly Longuet.
John's will directs that Sylvia receive his personal effects and distributes his
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remaining assets to two trusts: the Unlimited Marital Deduction Trust (“Marital Trust”) and
the Family Trust. The will names John M. Robinson as the trustee of both trusts.
The will directs that Marital Trust income be paid to Sylvia during her lifetime, with
the principal available for her support if necessary. Section 3.4 of John's will grants Sylvia
testamentary power of appointment over the Marital Trust principal by “specific reference”
in Sylvia's will. John's will provides in section 3.6 that any unappointed Marital Trust assets
will be distributed upon Sylvia's death as specified.
The will also states that Family Trust assets may be distributed during Sylvia's
lifetime to Sylvia or to John's descendants as necessary for their support. In section 4.3,
John's will grants Sylvia a lifetime power of appointment over the Family Trust income and
principal, as well as a testamentary power of appointment by “specific reference” in her will.
John's will states that the Family Trust will terminate “when my wife dies or when no child
of mine is living and under age 40, whichever is later.” John's will directs any unappointed
Family Trust assets existing upon termination to be distributed according to the same
schedule as the unappointed Marital Trust assets.
With respect to both the Marital Trust and the Family Trust, John's will places an
express limitation on Sylvia's power of appointment. Section 3.4 of John's will, which
governs the Marital Trust, states that Sylvia “shall not have the power to appoint trust
principal to herself, her estate, her creditors or the creditors of her estate.” Section 4.3 of
John's will, which governs the Family Trust, states that Sylvia “shall not appoint trust
property to herself, her creditors, her estate, or the creditors of her estate.”
John Doggett died in 1987. His will was probated, and Sylvia was appointed executor
of his estate. It is alleged that neither trust was funded during Sylvia's lifetime or after her
death. John M. Robinson died in 2002.
II. Sylvia Doggett's Will
Sylvia executed a will in 2002. After she died in 2006, her will was admitted to
probate and Beverly was appointed executor of Sylvia's estate.
This appeal focuses in significant part on sections 2.1 and 2.4 of Sylvia's will. These
sections provide as follows:

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2.1 I give, devise and bequeath all of my property, real, personal and mixed, of
every kind and character and description, and wherever situated, and any other
property over which I may have a power of appointment or power of
testamentary disposition, according to the provisions of this Article II.
***
2.4 I give, devise and bequeath all the rest, residue, and remainder of my estate
and property to my daughter, Beverly Ann Longuet.
Sylvia's will also provides in section 2.3 for the distribution of Sylvia's personal
effects, and makes three monetary bequests in section 2.2 to persons other than John's
children, John's grandchildren, or Beverly.
III. Suit by John Doggett's Children and Grandchildren
John's surviving children—Robert Doggett, Florence Doggett Pollard, and Paul R.
Doggett—sued Beverly individually and in her capacity as executor of Sylvia's estate in 2007.
They alleged, among other things, that (1) Sylvia failed to establish and operate the trusts
properly; and (2) Beverly failed to provide an accounting of the assets in Sylvia's estate and
information about assets that should have been used to fund the trusts. Three of John's
grandchildren—Paul, Mark, and Matthew Doggett—filed a petition in intervention. We refer
collectively to the original plaintiffs and intervenors as the “Doggett claimants.”
The Doggett claimants also sued Mary Robinson in her capacity as executor of John
M. Robinson's estate. The Doggett claimants alleged that John M. Robinson accepted
appointment as trustee of the Marital Trust and the Family Trust under John's will. They
further alleged, among other things, that John M. Robinson failed to fulfill his obligations as
trustee; assisted Sylvia in taking assets belonging to the trusts; failed to require assets to be
segregated; made misrepresentations; and breached his fiduciary duties as trustee. The
Doggett claimants contend that, as a result of this alleged conduct, Beverly improperly
obtained trust property intended for them under John's will. The Doggett claimants sought
actual damages, punitive damages, costs and attorney's fees, interest, the imposition of a
constructive trust, and declaratory relief.
Beverly settled with the Doggett claimants on behalf of herself and Sylvia's estate in
2008, leaving Robinson's estate as the only defendant.
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Robinson's estate filed a traditional summary judgment motion under Rule 166a(c),
arguing that it was not liable to the Doggett claimants because Sylvia in her will properly
exercised her power of appointment in favor of Beverly. The Doggett claimants also filed a
traditional summary judgment motion, arguing that (1) John's will authorized Sylvia to
exercise her power of appointment only in favor of John's “descendants” as that term is
defined in section 9.3 of John's will; and (2) Beverly is not among John's defined
“descendants.”
The trial court granted partial summary judgment in favor of Robinson's estate and
denied the Doggett claimants' motion. The trial court held: “As a matter of law, Sylvia
Doggett validly exercised her power of appointment in favor of John Doggett's descendant,
Beverly Longuet; and ... [b]ecause of the valid exercise of the power of appointment, [the
Doggett claimants'] claims fail as a matter of law.” The summary judgment was interlocutory
because attorney's fees were not adjudicated.
After a one-day bench trial, the trial court signed a final judgment on November 4,
2009 that (1) incorporated its prior partial summary judgment; and (2) awarded attorney's
fees to Robinson's estate. Robinson's estate filed a motion to modify the final judgment,
which the trial court granted in part and denied in part. The trial court signed an amended
final judgment on December 1, 2009, and the Doggett claimants timely appealed.
ANALYSIS
This appeal turns on the interplay between John's will and Sylvia's will. The Doggett
claimants contend that the trial court erred by denying their motion for summary judgment,
and by granting summary judgment based on the trial court's conclusion that Sylvia properly
exercised her power of appointment in favor of Beverly. In their first issue, the Doggett
claimants assert that Sylvia's will did not validly exercise the power of appointment under
sections 3.4 and 4.3 of John's will. In their second issue, the Doggett claimants contend that
Beverly is not among the defined “descendants” to whom Sylvia was allowed to appoint
trust property under section 9.3 of John's will. They also challenge the award of attorney's
fees in their third issue. Robinson's estate raises one issue on cross-appeal, arguing that the
trial court should have awarded costs and post-judgment interest in the final judgment.
I. Standard of Review
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An appellate court applies de novo review to a traditional summary judgment under
Rule 166a(c), using the same standard that the trial court used in the first instance. Duerr v.
Brown, 262 S.W.3d 63, 68 (Tex.App.-Houston [14 Dist.] 2008, no pet.) (citing Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
The defendant as movant must disprove at least one essential element of each of the
plaintiff's causes of action in order to prevail on summary judgment., Wright v. Greensberg, 2
S.W.3d 666, 670 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (citing Lear Siegler Inc. v.
Perez, 819 S.W.2d 470, 471 (Tex. 1991)). This burden requires the movant to show that no
genuine issue of material fact exists and that the movant is entitled to judgment as a matter
of law. Id. (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)). In
determining whether a material fact issue exists to preclude summary judgment, evidence
favoring the nonmovant is taken as true, and all reasonable inferences are indulged in favor
of the nonmovant. Id.
II. Exercise of the Appointment Power
All rules of will construction must yield to the basic intention and purpose of the
testator as reflected by the entire instrument. Wright, 2 S.W.3d. at 672 (citing Shriner’s Hosp.
for Crippled Children of Tex. V. Stahl, 610 S.W.2d 147, 151 (Tex. 1980)). The testator's intent
must be ascertained from the language used within the four corners of the instrument. Id.
The question is not what the testator intended to write, but the meaning of the words
actually used Id.. In the absence of ambiguity, we must construe the will based on the express
language used. Id. If the court can give a certain or definite meaning or interpretation to the
words of an instrument, it is unambiguous and the court may construe it as a matter of law.
Id. (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)). If, however, the meaning of the
instrument is uncertain or reasonably susceptible to more than one meaning, it is ambiguous.
Id. at 671. If it is ambiguous, then its interpretation presents a fact issue precluding summary
judgment. Id.
A. Standards Governing Exercise of the Appointment Power
The interpretation issue addressed in this appeal focuses on a power of appointment.
It is helpful to describe at the outset what the power of appointment entails.
“A power of appointment is a power of disposition given to a person over property
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not his own, by [someone] who directs the mode in which that power shall be exercised by a
particular instrument.” Republic Nat’l Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39,
46 (1955) (internal quotation omitted). “It is an authority to do an act which the owner
granting the power might himself lawfully perform.” Id. (internal quotation omitted). This
power enables the donee to designate, within such limits as the donor may prescribe, the
transferees of the property or the shares in which it shall be received. Id.
It also is helpful to describe what the power of appointment is not. “A power of
appointment is neither property nor an estate, but is a mere right or power.” Krause v. Barton,
430 S.W.2d 44, 47 (Tex.Civ.App.-Houston [1st Dist] 1968, writ. ref’d nre). “The authority
given to the donee of a power of appointment does not vest in him any estate, interest, or
title in the property which is the subject of the power.” Id.
To exercise the appointment power granted in sections 3.4 and 4.3 of John's will,
Sylvia's will “must refer to the power of appointment or the property subject to such
power;” alternatively, Sylvia “must have owned no other property to which the will could
have attached and thus the will have been a vain and useless thing except it be held to be an
exercise of such power.” Republic Nat’l Bank of Dallas, 283 S.W.2d at 47. Robinson's estate
does not rely on the second or third bases to argue that Sylvia validly exercised her power of
appointment in favor of Beverly. Therefore, we address the reference in Article II of Sylvia's
will to a power of appointment and examine whether Article II validly exercises the power
granted in John's will.
The inquiry in this case goes beyond the mere existence of a reference to the
appointment power. “The general rule is that in order for a will or deed to constitute the
exercise of a power of appointment*100 the intent to exercise such power must be so clear
that no other reasonable intent can be imputed under the will.” Id. “‘If, from the
circumstances or the instrument executed, it be doubtful as to whether it was the intention
to execute the power possessed by the grantor, then it will not be held that by such act or
conveyance that power was in fact executed.’ ” Id. (quoting Hill v. Conrad, 91 Tex. 341, 43
S.W. 789, 791 (1897)).
We note another hurdle that must be cleared in this particular case. Sections 3.4 and
4.3 of John's will provide that Sylvia's testamentary power of appointment over Marital Trust
and Family Trust assets must be exercised by “specific reference.” Robinson's estate contends
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that Sylvia exercised this power by “specific reference” in sections 2.1 and 2.4 of Sylvia's will.
The Doggett claimants contend that Article II's reference to “any other property over which
I may have a power of appointment” is not precise enough to be a “specific reference.”
With these standards as a backdrop, we examine whether Sylvia's will validly
exercised the appointment power granted in John's will.
B. Application of the Standards to Sylvia's Will
According to Robinson's estate, Article II of Sylvia's will exercised the appointment
power granted to her in sections 3.4 and 4.3 of John's will. Robinson's estate contends in its
appellate brief that Article II of Sylvia's will “bequeathed to her daughter ‘any other property
over which I may have a power of appointment.’ ” To make this argument, Robinson's
estate reads sections 2.1 and 2.4 of Sylvia's will together.
Section 2.1 states Sylvia's intent to give, devise, and bequeath “all of my property ...
and any other property over which I may have a power of appointment.” This language by
itself does not appoint property to any identified recipient. Therefore, Robinson's estate
cannot rely solely upon section 2.1 as the vehicle by which Sylvia appointed trust property to
Beverly.
Robinson combines this language from section 2.1 with language from a residuary
clause in section 2.4 to formulate an appointment of trust property to Beverly. Section 2.4
states, “I give, devise and bequeath all of the rest, residue and remainder of my estate and
property to my daughter, Beverly Ann Longuet.”
The formulation posited by the Robinson estate's brief—under which Sylvia
“bequeathed to her daughter ‘any other property over which I may have a power of
appointment’ ”—omits section 2.4's reference to “my estate and property.” As discussed more
fully below, this omitted phrase is significant.
The Doggett claimants contend as a threshold matter that section 2.1's language does
not constitute the “specific reference” demanded by John's will because section 2.1's
language does not explicitly refer to John's will, the power granted in John's will, or the
trusts. We assume without deciding that Sylvia's stated intent in section 2.1 to dispose of
“any other property over which I may have a power of appointment” satisfies the “specific
reference” requirement in sections 3.4 and 4.3 of John's will. But that is only the first hurdle.
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Even with this threshold assumption, Robinson's estate still must establish that
section 2.1's reference to “any other property over which I may have a power of
appointment” can be read in conjunction with section 2.4's residuary clause to accomplish a
valid exercise of the appointment power in favor of Beverly. Evaluating this latter
proposition requires a close examination of the phrase “my estate and property ” because that is
what Sylvia gave “all of the rest, residue and remainder of” to Beverly in section 2.4.
Ordinary grammar and usage precepts teach that section 2.4's reference to “my estate
and property” means Sylvia's “estate” and Sylvia's “property.” Se McIntyre v. Ramirez, 109
S.W.3d 741, 746 (Tex. 2003) (interpreting phrase “a person who would ordinarily receive or
be entitled to receive” in statute to mean a person who would “ordinarily receive” or
“ordinarily be entitled to receive”); Cent. Power & Light Co. v. Bradbury, 871 S.W.2d 860, 86364 (Tex. App.-Corpus Christi 1994, writ. denied)(interpreting phrase “ambulatory devices
and services” in statute to mean “ambulatory devices” and “ambulatory services”); see also S.
& P. Consulting Eng’rs. P.L.L.C. v. Baker, 334 S.W.3d 390, 401-02 (Tex.App.-Austin 2011, no
pet) (acknowledging authority “preferring [the rule] that a single adjective preceding a list of
nouns modifies each of the nouns” in statutory interpretation cases); Bonilla v. State, No. 1408-00289-CR 2010 WL 2195440 at 9n.18 (Tex.App.-Houston [14th Dist.] June 3, 2010, no
pet.) (mem.op.) (interpreting phrase “written order or grant of permission” in criminal
statute to mean “written order” or “written grant of permission” according to “rules of
grammar and common usage”). Robinson's estate did not argue otherwise in the trial court.
Under this reading of “my estate and property” as Sylvia's “estate” and Sylvia's
“property,” section 2.4's residuary clause accomplished an appointment of trust property to
Beverly if Sylvia “intended that the appointive estate become part of her residual estate, and
that it pass ... under the terms of her will” to Beverly. See Krause, 430 S.W.2d at 49. Such a
reading comports with an understanding of the appointment power as “neither property nor
an estate” by itself, which did not vest in Sylvia “any estate, interest, or title” in the trust
property. See id at 47. The property subject to the appointment power would not become
part of Sylvia's “property” or Sylvia's “estate” unless that property first was appointed to
Sylvia or to Sylvia's estate. See id at 49.
In short, the approach illustrated by Krause contemplates a two-step process. The
property first is appointed to the testator's estate and then reaches the recipient named in the
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residuary clause. See id. This court's decision in Wright illustrates the same two-step process.
See Wright, 2 S.W.3d at 673. (“Having found that Jacob did exercise the power of
appointment, we further hold that by the terms of his will, Jacob intended that his
appointive estate become part of his residual estate, and that the appointive estate under
Lurine's will passed to the trustee of the Jacob Greenberg Family Trust.”). But this
mechanism was not available to Sylvia.
In regard to the Marital Trust, section 3.4 of John's will unambiguously states: “My
wife shall have the special testamentary power to appoint ... provided, however, she shall not
have the power to appoint trust principal to herself [or] her estate....” In regard to the Family
Trust, section 4.3 of John's will unambiguously states: “My wife shall not appoint trust
property to herself ... [or] her estate....”
If Sylvia could not appoint trust property to herself or to her estate, then section
2.4's residuary clause bequeathing to Beverly “all the rest, residue and remainder” of Sylvia's
“estate” and Sylvia's “property” could not capture the trust property. If section 2.4's
residuary clause could not capture the trust property, then that clause cannot be read in
conjunction with section 2.1 of Sylvia's will to bequeath to Beverly “any other property over
which I may have a power of appointment.” Such an interpretation impermissibly
contravenes the unambiguous limits in sections 3.4 and 4.3 of John's will on Sylvia's exercise
of the appointment power. Cf. Krause, 430 S.W.2d at 48. (“The will of William H. Wilson
authorized Mrs. Wilson to appoint her own estate....”). Therefore, as a matter of law,
Robinson's estate cannot rely on the two-step mechanism illustrated by Krause and Wright to
establish that section 2.1 of Sylvia's will worked in conjunction with section 2.4's residuary
clause to accomplish a valid exercise of Sylvia's appointment power in favor of Beverly.
To address the limits established in sections 3.4 and 4.3 of John's will, Robinson's
estate contends in a post-argument brief that “the trust principal need not—and does not—
pass through Sylvia's estate.” Instead, “Sylvia expressed her intent that the power of
appointment be exercised and the property given in the same manner as her estate property,
but not that it be appointed to her estate.” Robinson's estate further argues that “[t]here is
no need to treat the trust property as part of Sylvia's estate” when construing sections 2.1
and 2.4.
Without expressly saying so, this alternative argument reads the residuary clause's key
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phrase—“my estate and property”—to bequeath Sylvia's “estate” along with “property
[including property over *103 which I have a power of appointment].” This argument does
not effectively circumvent the appointment power limits established in John's will for two
reasons.
First, the Robinson estate's alternative argument requires this court to perform major
surgery on section 2.4's residuary clause by grafting the bracketed phrase [including property
over which I have a power of appointment] onto “my estate and property.” Cf. Krause, 430
S.W.2d at 48-49 (residuary clause specifically disposed of all other property “which I may
own or claim at the time of my death or over which I then shall have power of testamentary
disposition”). We cannot do so because “courts may not redraft the will, vary or add
provisions under the guise of construction of the language of the will in order to reflect
some presumed intention of the testatrix.” Shriner’s Hosp., 610 S.W.2d at 151.
Second, the Robinson estate's alternative argument requires choosing between
multiple meanings of the word “property” when it is used in section 2.4's residuary clause.
As discussed above, the most natural reading of section 2.4 is one in which “my estate and
property” means Sylvia's “estate” and Sylvia's “property.” Even if the Robinson estate's
interpretation is plausible, it is at best an alternative interpretation. Robinson's estate cannot
prevail merely by offering an alternative interpretation because the intent to exercise the
appointment power “must be so clear that no other reasonable intent can be imputed under
the will.” Republic Nat’l Bank of Dallas, 283 S.W.2d at 47.
It bears emphasizing that section 2.1 by itself appoints no property to Beverly or to
any other identified recipient. The Robinson estate's argument depends on combining
section 2.1 with the phrase “my estate and property” in section 2.4's residuary clause.
Therefore, the burden of demonstrating a sufficiently “clear” intent to exercise the
appointment power must be borne in significant part by section 2.4's residuary clause.
Section 2.1 encompasses at least two distinct types of “property.” Sylvia refers to
“my property” in section 2.1, which by definition does not include any property over which
she had power of appointment. See Krause, 430 S.W.2d at 47. Sylvia also refers in section 2.1
to “any other property over. which I may have a power of appointment.” Because section
2.4's reference to “property” reasonably could mean “my property” exclusive of appointive
property, Sylvia's intent to exercise the appointment power via section 2.4's residuary clause
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is not “so clear that no other reasonable intent can be imputed under the will.” Republic Nat’l
Bank of Dallas, 283 S.W.2d at 47. These circumstances create doubt “as to whether it was the
intention to execute the power possessed by the grantor” and militate against a holding that
the appointment power “was in fact executed” by “such act or conveyance” in section 2.4.
See id. i (citing Hill, 43 S.W. at 791
For these reasons, the trial court erred in granting summary judgment based on a
conclusion that “Sylvia Doggett validly exercised her power of appointment in favor of ...
Beverly Longuet.” The trial court therefore erred in granting summary judgment based on a
conclusion that “[b]ecause of the valid exercise of the power of appointment, [the Doggett
claimants'] claims ... fail as a matter of law.” As a matter of law, Robinson's estate cannot
establish that Sylvia validly appointed trust property to Beverly via sections 2.1 and 2.4 of
Sylvia's will. We sustain the Doggett claimants' first issue with respect to the grant of
summary judgment and the award of attorney's fees in favor of Robinson's estate.
CONCLUSION
We reverse the trial court's final judgment and remand this case for proceedings
consistent with this opinion.

Schwartz v. Baybank Merrimack Valley N.A., 456 N.E.2d 1141
GREANEY, Justice.
This case involves a testamentary power of appointment, the terms of which called
for its exercise by specific reference to the power in the donee's will. A judge of a Probate
Court concluded, after trial, that the power had not been exercised by the residuary clause of
the donee's will which neither referred to the power nor purported to exercise any power of
appointment. We conclude that the judge's decision was correct and affirm his judgment.
The facts are drawn from the judge's findings. On April 1, 1957, Mary F. Cox
executed a will which provided that the residue of her estate be held in trust for the benefit
of her daughter Dorothy Cox during Dorothy's lifetime. Upon Dorothy's death, the trustee
of Mary's trust was directed to pay the trust principal to such person or persons, including
the executor of Dorothy's will, as Dorothy “shall appoint by her will specifically referring to
the power herein given to her.” If Dorothy failed to exercise her general power of
appointment, the trust principal was to be paid to the New England Deaconess Hospital.
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Mary's will was admitted to probate on August 5, 1968, and, on July 17, 1970, BayBank
Merrimack Valley, N.A. (BayBank), was appointed to succeed the original trustee under the
will.
On May 6, 1977, Dorothy Cox executed a will, prepared by the plaintiff Maurice
Schwartz, an attorney. The will, insofar as relevant, gave to a friend a life estate in her home
and its contents, created a trust to maintain the home, and left specific cash bequests to a
niece and a nephew and three charities. The residuary clause of Dorothy's will read as
follows: “The said residue of my estate will be held in trust by my said Trustee ... to pay the
income thereof, to my ... niece, LOUISA GILBERT, during her lifetime. Upon her death,
said residue and any accrued income thereof, shall go to ... BEAVER COLLEGE, of
Glenside, Pennsylvania, outright, and said Trust will terminate.” Dorothy died on January 4,
1980, never having married and leaving no issue. Her will was allowed and, on March 26,
1980, Mr. Schwartz was appointed as her executor and trustee. Dorothy had insufficient
assets at the time of her death to fund all the bequests in her will.
In addition, Mr. Schwartz, the sole witness at trial, testified as to the circumstances
attendant upon his drafting of the will. He indicated that he had asked Dorothy about her
assets and the funding of legacies, and that she had made reference to money in BayBank
which could be used to pay the legacies. He also testified that he did not ask to see Mary's
will before he prepared Dorothy's will, that he first became aware of Mary's trust after
Dorothy's death, and that Dorothy never requested that her will exercise her power of
appointment. Finally, Mr. Schwartz testified that Dorothy received substantial sums from
another trust created by her father and administered by The First National Bank of Boston
as trustee, that Dorothy knew that the residue of the estates of both her parents were
managed by trustees, that she received income from both trusts of about $20,000 annually,
and that Dorothy had a checking account at a BayBank office.
1. The facts require examination in light of several general principles pertaining to
the exercise of powers of appointment and two Massachusetts decisions.
Generally, when the donor of a power of appointment prescribes a specific formality
for the exercise of the power, there will be no effective appointment in the absence of the
donee's compliance with the formalities dictated by the donor. National Shawmut Bank v. Joy,
315 Mass. 457, 462, 53 N.E.2d 113 (1944). Restatement (Second) of Property §18.2 (Tent.
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Draft No. 6 1983. This rule, however, is not absolute. Failure to satisfy the formal
requirements imposed by a donor will not cause the appointment to fail if the donee's action
reasonably approximates the prescribed manner of appointment, especially where the
appointee is a member of a favored class. Restatement (Second) of Property, supra § 18.3. 5
American Law of Property § 23.44 (1952). See Shine v. Monaha, 354 Mass. 680, 682, 241
N.E.2d 854 (1968). A donor's requirement of specific reference ordinarily negates any
presumption that a general residuary clause may exercise the power and mandates, for
effective exercise of the power, an affirmative act by the donee at least approximating the
indicated formality.
The reasons behind these rules are simple enough to discern. The donor of the
power presumptively intends by the specific reference requirement that the donee (a) focus
on the consequence of the appointive act and consider the donor's wish with respect to the
trust remainder if there is a default in exercise of the power, and (b) make an unambiguous
written statement expressing a wish to exercise the power. With proper compliance, the
specific reference device provides for the reasoned disposition of property by means of
written and proven instruments which help to establish an unimpeachable record of title and
serve to discourage unnecessary litigation.
These principles underlie two decisions of the Supreme Judicial Court within the last
fifteen years which, while not directly on point, instructively discuss the subject of successful
exercise of powers of appointment.
In Shine v. Monaha, 354 Mass. 680, 241 N.E.2d 854 (1968), the donor of an inter
vivos trust required that a general power of appointment be exercised “by specific reference
in her [donee's] will to the full power hereby created.” The donee's will provided for the
distribution of “[a]ll the rest, residue and remainder of my property, including all property of
which I have a power of appointment by virtue [of] any will or testament or inter vivos trust
executed by my husband [the donor].” An effective exercise of the power was found, under
the principles of approximation, because the donor's purpose (to prevent inadvertent
exercise of the power) had been satisfied by the donee's deliberate references to all powers
of appointment given by her husband, the donor. Not to be overlooked in the decision, is
the court's careful distinction from the case before it of situations, as in National Shawmut
Bank v. Joy, supra, where the donor required a specific reference and the donee simply
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referred in general terms to any power of appointment the donee might possess. 354 Mass.
680, 241 N.E.2d 854.
In McKelvy v. Terry, 370 Mass. 328, 346 N.E.2d 912 (1976), the donor conferred on
the donee a limited testamentary power of appointment to be exercised “by reference [in the
donee's will] to the limited power of appointment herein given to him.” The donee's will
provided for distribution of “[a]ll of the residue of my estate, including lapsed legacies and
devises (and also including any property over which I may have a power of appointment
under any instrument, it being my intention to exercise all such powers which I may have at
my death).” The court found this residuary provision to be a sufficient exercise of the power,
commenting (at 332) that “the meaning or design of the relevant clause of the [donee's] will
sufficiently matches any requirement of the [donor's] trust instrument. That instrument calls
for a ‘reference’ to the power, not a specific reference, and we think ... that the residuary clause of
the will is an adequate reference although it is inclusive of any power created by any
instrument in the donee's favor” (emphasis supplied). Referring to Shine v. Monahan, the
court said (at 333): “We thought that there need not be exact compliance with the formality
indicated by the donor where the approximation would satisfy his basic purpose. Less
indulgence may be needed in the present case because the donor did not in terms require a
specific reference.” These excerpts from the McKelvy case imply the special nature of a
specific reference requirement and emphasize that compliance with such a requirement
cannot be easily circumvented.
These principles and decisions provide the guidelines necessary to dispose of this
case. The general testamentary power of appointment granted to Dorothy by Mary's will
expressly required that it be exercised by Dorothy's will “specifically referring to the power.”
The critical inquiry is “not whether [the] donee intended to appoint but rather whether [the]
donee manifested her intent in the manner prescribed by [the] donor, i.e., by making specific
reference ‘in her will’ to the power granted by [the] donor's will” (emphasis original).
Holzbach v. United Virginia Bank, 216 Va. 482, 485-486, 219 S.E.2d 868 (1975). See also
Restatement (Second) of Property, supra, § 17.1. Unlike the situations in the Shine and
McKelvy cases, the residuary clause of Dorothy's will made no reference at all to any power.
Lacking any attempt at compliance with the requirement of specific reference, there is simply
no testamentary framework which will allow application of a rule of approximation. We
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conclude that Dorothy's will fails to exercise the power of appointment given to her by her
mother.
2. Some brief comment is in order on the plaintiff's several arguments seeking to
avoid the conclusion that there has been a default in the exercise of the power.
(a) The plaintiff's reliance on the decision in Amory v. Meredith, 7 Allen 397 (1863), is
misplaced. The rule in Amory provides that a general testamentary power of appointment will
be deemed to have been exercised by a general residuary clause in the donee's will, unless a
contrary intention is demonstrated. The rule does not apply where the donor requires that
the power be exercised by means of specific reference. See McKelvy v. Terry, 370 Mass. At 331332, 346 N.E.2d 912. See also National Shawmut Bank v. Joy, 315 Mass. at 462, 53 N.E.2d 113.
(b) The fact that Dorothy's will includes several pecuniary bequests which in total
may have exceeded her assets at the time of death does not, in these circumstances, imply
that the power has been exercised by implication. See Boston Safe Deposit and Trust Co., v.
Prindle, 290 Mass. 577, 584, 195 N.E. 793 (1935).
(c) The plaintiff's argument that property subject to a donee's general power is
actually the donee's property is misplaced. Mary's will clearly did not grant a general power
of appointment exercisable without restriction. We find the plaintiff's assertion to the
contrary both untenable on the facts and unsupported by any authority dealing with a
requirement of specific reference.
(d) While the testimony of Mr. Schwartz may have been properly admitted to show
the circumstances attendant upon the execution of Dorothy's will, see 2 Newhall, Settlement
of Estates § 361 at 470 (1958), the pertinent texts of the wills of Mary and Dorothy, when
laid side by side and read together, manifest no ambiguity. Extrinsic evidence is not
admissible to contradict or control unambiguous language in a will. See Gustafon v. Svenson,
373 Mass. 273, 275, 366 N.E.2d 761 (1977); Gove v. Hammond, 385 Mass. 1001-1002, 430
N.E.2d 822 (1982). Nor is it admissible to correct an inadvertent omission by Dorothy or a
mistake by the attorney who drafted the will. See Gustafson and Gove, supra. Finally, extrinsic
evidence, in the absence of an ambiguity, is not admissible to show Dorothy's intent, even if
the result is the failure of the intended gift. Ibid. See also First National Bank v. Shawmut Bank of
Boston, 378 Mass. 137, 144, 389 N.E.2d 1002 (1979).. See generally, Liacos, Handbook of
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Massachusetts Evidence at 390-392 (5th ed. 1981 & Supp.1983).
Judgment affirmed.
Problems
1. In which of the following cases, has the power been exercised?
a) Bethany’s will stated, “I leave my rental properties in trust for Greg for life, the remainder
as Greg shall appoint by will to any one that he chooses.” Greg appointed the rental
properties to Donna. Then, Greg dies intestate.
b) Karen’s will stated, “I leave my computers in trust for Jim for life, the remainder as Jim
shall appoint.” In his will, Jim stated, “I leave my entire estate, including property over which
I have an appointive power to my friend, Jane.”
c) Rita’s will states, “I leave my entire estate in trust for Mitchell for life, the remainder as
Mitchell shall appoint by will to any one of my children that he chooses.” Mitchell sent a
note to Rita’s children telling them that he planned to leave Rita’s money to them.
d) Frances’ will states, “I leave my stocks in trust for Leonard for life, the remainder as
Leonard shall appoint by will.” In his will, Leonard stated, “I leave the residue of my estate
to Lisa.”
Class Discussion Tool 1
In her will, Stella stated, “I give my son Mark the rents from my apartment complex
for the span of his life, and upon Mark’s death the apartment complex goes to whomever he
appoints in his will.” Mark is a gambler and he loves to play high stakes poker. One night
Mark lost all of his money, but he wanted to continue to play the game. Mark asked his
friend Stan to borrow $50,000. Stan is a real estate developer. In exchange for the $50,000,
Mark gave Stan a written promise to appoint him as owner of the apartment complex in his
will. A few moths later, Mark was killed when he was found cheating in a poker game. Mark
will reads, “I leave all of my property including property of which I have a power of
appointment to Rachel.” When Stan heard about the will, he sued Mark’s estate. He asked
the court to give him the apartment complex or $50,000 plus interest. What type of power
does Mark have? Can Stan get the apartment complex? Can Stan get the $50,000?
Class Discussion Tool 2
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In her will, Olivia stated, “I give my son Jeremy the income from my retail store for
life, and upon Jeremy’s death the store goes to whomever he appoints in his will. If Jeremy
fails to exercise his power of appointment, the retail store will go to Jack.” Jeremy became ill
and needed someone to take care of him. Jeremy told his cousin, Annie, that if she took care
of him, he would appoint her as owner of the retail store. Jeremy and Annie put there
agreement in writing. In his will, Jeremy stated, “I leave all of my property to Jenny. I leave
all of the property over which I have a power of appointment to Annie in accordance with
our written agreement.” Jack filed an action to have the contract declared void and
unenforceable. What result?

387