Gowthorpe v. Page

100 Mich. App. 657
CourtMichigan Court of Appeals
DecidedOctober 8, 1980
DocketDocket No. 46366
StatusPublished
Cited by1 cases

This text of 100 Mich. App. 657 (Gowthorpe v. Page) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gowthorpe v. Page, 100 Mich. App. 657 (Mich. Ct. App. 1980).

Opinion

Per Curiam.

The will of Walter S. Butterfield, who died in 1936, established a trust, most of the income of which was to be paid to his surviving widow and to his six children. In the event of the death of a child of the decedent before termination of the trust, the income from the child’s share was to be paid to the issue of such child. The trust is to continue until the death of the decedent’s widow [661]*661and all of his children, at which time the remaining trust property will be divided equally among all of the decedent’s grandchildren who are then living.

Since the corpus of the trust consists solely of 100% of the stock of Bijou Theatrical Enterprise Company, the income of the trust is derived entirely from the dividends declared and paid by Bijou, plus the interest on the temporary savings account maintained by the trustees. The assets of Bijou consist of real estate and securities. This company derives its income from rental payments on the real estate and the dividend and interest income on the securities. Two of Bijou’s major holdings consist of 74.2% of the outstanding shares of W. S. Butterfield Theatres, Inc. (Butterfield Theatres) and two-thirds of the outstanding shares of Butterfield Michigan Theatres Company (Butter-field Michigan), together referred to as the "operating companies”. The University of Michigan owns the minority interest in each of these two companies. Each of the companies operates motion picture theatres in a number of Michigan communities. In addition, Butterfield Theatres owns all or a portion of the outstanding stock of other theatre corporations.

The decedent’s will appointed the Central Trust Company of Lansing, Michigan, and three named individuals as trustees. It also provided that the successor to one of the individual trustees shall be "an experienced, competent man in the theatrical business” and that the successors to the two other individual trustees shall be "competent and experienced lawyers”.

During the calendar year 1975, the time period covered by the 37th annual account, the attorney trustees were Richard C. Van Dusen and Richard B. Gushee. The trustee experienced in the theatri[662]*662cal business was Montague F. Gowthorpe, who was president and chief executive officer of Bijou and the two operating companies from 1949 through 1975. He was a trustee of this trust from 1949 until his death on October 9, 1979. The corporate trustee was American Bank and Trust Company of Lansing, Michigan, the successor by merger to Central Trust Company of Lansing. John R. Pettibone, senior vice president and a director of American Bank and Trust, was the officer of the corporate trustee directly responsible for the Butterfield trust.

During the period of the 37th annual account, the five directors of Bijou were Gowthorpe, Pettibone, Van Dusen, and Gushee, the trustees of the trust, and Lyle W. Smith, president of Bijou. During the same period, the six directors of Butterfield Theatres were Gowthorpe, Pettibone, and Van Dusen, all trustees, Smith, who was also president of Butterfield Theatres, and Gerald R. Dunn and Paul W. Brown, regents of the University of Michigan. Also during this time, the six directors of Butterfield Michigan were Gowthorpe, Pettibone and Gushee, all trustees, Smith, who was also president of Butterfield Michigan, and regents Dunn and Brown. Pettibone also served as vice president of Bijou and secretary of all three companies.

The objections to the 37th annual account were initially filed by Jesse W. Page, III, one of the 17 surviving grandchildren of the decedent. He is a remainderman and, on the death of his mother in 1969, he became an income beneficiary. Page objected to both the form of the accounting and to the investment activities of the trustees. He asked that the probate court disallow the account, order the trustees to file a new account containing addi[663]*663tional financial information, order the trustees to cause the distribution of excess accumulations of income, and order the trustees to make an adequate diversification of the trust estate. Page also petitioned for the removal of Gowthorpe as a trustee and for the appointment of a successor. Several of the other beneficiaries of the trust joined in Mr. Page’s objections and petitions.

After hearings on the account and the various objections and petitions, the probate court for the County of Calhoun entered an order on July 16, 1979, which allowed the 37th annual account, denied the petition to remove Gowthorpe as a trustee for lack of sufficient grounds, and denied the petition for an order directing the trustees to cause distributions of the earnings of the operating companies accumulated prior to August 4, 1978; however the court ruled that the trustees would have to justify in the future any retention in excess of 25% of the net income of the so-called operating companies. In all other respects, the court overruled the objections to the account. The significance of August 4, 1978, is that that was the date of the court’s opinion which initially ruled on the accounting and the objections and petitions filed by Page.

The trustees timely filed a claim of appeal, and the objecting trust beneficiaries filed their cross-appeal. Recognizing that a substantial question existed as to the jurisdiction of this Court to entertain the appeal and cross-appeal from this probate court order, this Court ordered the parties to file separate briefs on the question of jurisdiction.

The appeal and the cross-appeal were filed in this Court pursuant to MCL 600.861; MSA 27A.861, which provides inter alia that a party to a proceed[664]*664ing in the probate court may appeal as a matter of right to the Court of Appeals from a "final order affecting the rights or interests of any interested person in an estate or trust”. This provision is part of Chapter 8 of the Revised Judicature Act which was added by 1978 PA 543 and took effect July 1, 1979. Resolution of the jurisdictional question requires the examination of the probate court’s order of July 16, 1979, to determine: (1) whether it is an order entered in a "trust” as that term is used in the statute, (2) whether the order is "final” in whole or in part, and (3) whether the order affects the rights or interests of persons in the trust.

The jurisdiction of the Court of Appeals is established by the Legislature. Const 1963, art 6, § 10. The Legislature has the authority to prescribe in what cases and under what circumstances appeals may be taken. Moore v Spangler, 401 Mich 360, 369; 258 NW2d 34 (1977). 1978 PA 543 was enacted in conjunction with 1978 PA 642, the Revised Probate Code. MCL 700.1 et seq.; MSA 27.5001 et seq. Since the effectiveness of each of these acts was made contingent upon the enactment of the other,1 we have concluded it is the intent of the Legislature that these acts be read together. In the Matter of Antieau, 98 Mich App 341; 296 NW2d 254 (1980).

We therefore turn to the definition of the term "trust” found in § 11 of the Revised Probate Code, which provides in pertinent part as follows: [665]*665The trust in the instant case, having been created by will, is therefore a "trust” as that term is used in MCL 600.861; MSA 27A.861.

[664]*664"(2) 'Trust’ means an express trust, private or charitable, with additions thereto, where created and whether created by will or other than by will.” MCL 700.11; MSA 27.5011.

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Related

In Re Butterfield Estate
300 N.W.2d 359 (Michigan Court of Appeals, 1980)

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Bluebook (online)
100 Mich. App. 657, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gowthorpe-v-page-michctapp-1980.