Court of Appeals, in exercise of supervisory power under G.S. § 7A-32(c), could consider appeal subject to dismissal
How later courts described this case
- Court of Appeals, in exercise of supervisory power under G.S. § 7A-32(c), could consider appeal subject to dismissal
Written by the judges who cited it.
The opinion
Judge Brock
dissenting:
I do not disagree with the determination in the majority opinion that the findings of the trial tribunal are inconsistent with the evidence, and for that reason would require reversal of the judgment entered. However, I would point to an additional ground for reversal lest upon rehearing the trial tribunal might be led to believe our silence on the subject constituted approval.
Finding of Fact No. (18) is as follows:
“ (18) The Trustees, in the application of Trust income, should be authorized to establish an Advisory Board of such individuals as the Trustees may from time to time deem best suited to enable them to apply Trust income for the manifested general charitable intention of the testatrix and to employ such professional or administrative assistance *475 as, in the opinion of the said Trustees, is necessary or desirable for the efficient and expeditious administration and disposition of trust funds. The Trustees should be expressly authorized to expend trust funds for the purpose of malting intelligent application of Trust income and, in so doing, to provide reasonable compensation to members of the Advisory Board, to purchase qualified advice and research data and to establish an office with pertinent supplies, equipment and staff.”
Thereafter section (2) of the judgment provides:
“(2) The Trustees are hereby authorized to establish an Advisory Board of such persons as the Trustees may from time to time deem best suited to advise and counsel them in the application of trust income toward the promotion of health and medical care for the people of North Carolina in need of medical care or assistance.”
A portion of section (3) of the judgment provides:
«(3) * * * the Trustees are further authorized and empowered to expend Trust funds for the purpose of making intelligent application of trust income and, in so doing, to provide reasonable compensation to members of any Advisory Board, to purchase such further qualified advice and research data as the Trustees from time to time deem necessary, and, to the extent that the Trustees may from time to time deem necessary or proper, to establish an office with pertinent supplies, equipment and staff to carry out the administration of the trust as herein authorized.”
By the portions of the judgment above quoted, the Trustees are authorized to shift responsibility for decision making to an Advisory Board selected by them; and the Trustees are authorized to fix compensation for the members of such a board, to be paid from the Trust funds. Also, the judgment authorizes the Trustees, at the expense of the Trust, to rent office space, purchase supplies and equipment for the office, and employ a staff of personnel to carry out the administration of the Trust. Thus, the Trustees may not only shift the responsibility of decision making to an advisory board, but may also shift the actual administration of the Trust to a staff employed and housed in an office for that purpose; all at the expense of the Trust.
*476 The compensation to the Trustees, as disclosed by petitioners’ exhibit #10, is estimated to be $60,110.72 for the year 1970. It seems that the Trust is already paying a considerable sum for time and services to administer the Trust; and upon the record in this case I don’t believe it is just or equitable, or within the authority of the Court, to allow the Trustees to be adequately compensated for administering the Trust, and, at the same time, at additional expense to the Trust, employ an advisory board to tell them how to administer and a staff to carry out the administration.
There is no authority granted by the Trust instrument itself which would allow the Trustees to employ an Advisory board, rent office space, purchase office supplies and equipment, or employ a staff to carry out the administration of the Trust. The implication of item 5 of Section Seven of the Will is to the contrary; by this section the compensation for administering the trust is clearly set out by Mrs. Reynolds. The judgment as entered, in effect, amends item 5 of Section Seven by considerably increasing the compensation to the Trustees; not by increasing the money paid them, but by allowing the Trust to pay someone else to furnish the services for which the Trustees are being paid.
If the Trustees are to continue in office it is only proper that they supply the functions and shoulder the responsibilities for which they are being compensated, and which they accepted when they assumed their office as Trustees.
In my opinion the trial tribunal exceeded its authority in portion of the judgment discussed in this dissenting opinion.