stating well settled rule that trustee has duty to administer trust solely in interest of beneficiary and is prohibited from: 1
How later courts described this case
- stating well settled rule that trustee has duty to administer trust solely in interest of beneficiary and is prohibited from: 1
- “a surcharge was viewed not as compensation for any possible loss, but as punishment for the fiduciary’s improper conduct”
- “The legal proceedings which are the subject of the appeal currently before us began . . . when the Children filed a Petition for Removal of Trustees, Accountings, Disgorgement, Injunctive Relief, Surcharges and Damages”
- modifying amount of judgment to correct mathematical error
Written by the judges who cited it.
The opinion
*133 CONCURRING STATEMENT BY
KLEIN, J.:
¶ 11 join in the majority Opinion.
¶ 2 I certainly understand the difficulty in unscrambling this matter where the trust language is somewhat cryptic and the trustee/beneficiaries totally ignored the fact that the property was in trust.
¶ 3 Normally, the remedy should be to remove the Paxsons as trustees, return any property improperly taken from the trust to the trust, recover the profits from other transactions proportional to the amount of trust property used as collateral for those transactions, and then pay the income to the Paxsons for their lifetime. However I agree with the majority that considering the marital breakup and the extent of the hostility between Father and Mother and the children, it was not an abuse of discretion for the trial judge to find that the trust purpose failed and to terminate the trust. I also agree with the majority that this does not extinguish the life interest in the Paxsons, and they should receive the value of their life interest.
¶ 4 I also agree that any profit attributable to the misuse of trust property should be considered returned to the trust. However, that property should be returned to the trust before terminating the trust. While the Paxsons are responsible for reimbursing the trust for personal profits made by misuse of trust property, the value of the life interest should be computed after those sums returned to the trust.