Lanagan v. Rorke

182 S.W.3d 596, 2005 Mo. App. LEXIS 1832, 2005 WL 3280026
CourtMissouri Court of Appeals
DecidedDecember 5, 2005
Docket26736
StatusPublished
Cited by1 cases

This text of 182 S.W.3d 596 (Lanagan v. Rorke) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lanagan v. Rorke, 182 S.W.3d 596, 2005 Mo. App. LEXIS 1832, 2005 WL 3280026 (Mo. Ct. App. 2005).

Opinions

JOHN E. PARRISH, Judge.

Anne T. Lanagan (appellant) appeals a judgment from the probate division of the Circuit Court of Greene County, Missouri, that denied appellant’s request to remove Linda Marie Rorke (respondent) as successor trustee of the Daniel Arthur Rorke, Jr., Trust and denied a claim for damages directed to distributions of principal from the trust that appellant contends were not in accordance with terms of the trust instrument. This court reverses and remands for further proceedings.

Daniel Arthur Rorke, Jr., (settlor) established the trust in 1989 as part of the estate plan of himself and respondent, his wife. At his death, the assets were to be divided and held in two trusts, a marital trust and a non-marital trust. This was done for purposes of Federal Estate Tax. Respondent executed a similar trust. Each spouse was initial trustee of his or her trust. Each spouse was designated the first successor trustee of the other’s trust. They were lifetime beneficiaries of both trusts. Settlor’s children were remainder beneficiaries of his trust. Set-tlor’s children were not beneficiaries of respondent’s trust.

Settlor’s trust further provides with respect to appointment of trustees:

[598]*598If [respondent] shall fail to qualify or cease to act or be unable to act as a Trustee hereunder, then DANIEL ARTHUR RORKE, III shall be appointed as successor trustee. If DANIEL ARTHUR RORKE, III shah fail to qualify, cease to act or be unable to act as Trustee hereunder, then MARY CATHERINE RORKE shall be appointed as successor trustee. If MARY CATHERINE RORKE shall fail to qualify, cease to act or be unable to act as Trustee hereunder, then JOSEPH LAWRENCE RORKE shall be appointed as successor trustee. If JOSEPH LAWRENCE RORKE shall fail to qualify, cease to act or be unable to act as Trustee hereunder, then ANNE THERESA RORKE shall be appointed as successor trustee. If all of the above-named individuals shall fail to qualify, cease to act or be unable to act as Trustee hereunder, then THE COMMERCE BANK OF SPRINGFIELD N.A., of Springfield, Missouri shall be appointed as successor trustee.

General Instructions in Article IV of the trust state:

(F) Conflicts of Interest. No individual while serving as Trustee hereunder shall participate in any decision concerning any discretionary payment from any part of my estate or any Trust created therefrom in which such individual may then have any beneficiary interest. Provided, however, that the above restrictions shall not apply where the beneficiary interest is contingent upon the survival by such Trustee of the death of the person for whose benefit the decision concerning the discretionary payment is made.

Settlor died in 1999. Respondent became successor trustee and sole lifetime beneficiary of his, trust. (The trust agreement provided, however, that she would be referred to in the trust as “Trustees.”) She has continued to act as its trustee since settlor’s death.

The trust provided that trust assets, after payment of certain expenses, were to be divided into a marital trust and non-marital trust. The marital trust provided for distributions, as applicable to this appeal, after payment of certain administration expenses and estate taxes, as follows:

(a) The Trustees shall pay, at convenient intervals, but not less frequently than annually, all of the net income from the Marital Trust to Settlor’s spouse.
(b) The Trustees may pay to Settlor’s spouse so much of the principal of the Marital Trust as the Trustees in their discretion deem necessary to provide for the health, education, support or maintenance of Settlor’s spouse (in accordance with the standard of living which was maintained during Settlor’s lifetime).
(c) The Trustees shall pay, upon the request of Settlor’s spouse such additional amount from the principal of the Marital Trust as may be requested by Settlor’s spouse, provided, however, that such additional distribution under this Paragraph (c) shall not exceed, in any one (1) year, the greater of five (5%) percent of the principal value of the Marital Trust; or Five Thousand ($5,000.00) dollars.
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(e) Upon the death of Settlor’s spouse, the remainder of the property comprising the Marital Trust shall be distributed and paid over by the Trustees into the Non-Marital Trust-

The non-marital trust has similar provisions to the marital trust. Differences include that the trustee is to pay over to the surviving spouse “so much of the net income from the Non-Marital Trust ... as the Settlor’s spouse shall request from [599]*599time to time.” It further provides for a sum of $5,000 to be available to provide for settlor’s dog if the dog is living following the deaths of settlor and respondent; for the remainder to be distributed to settlor’s children or their descendants. The trust acknowledged that settlor had four children, Daniel Arthur Rorke, III, Mary Catherine Rorke, Joseph Lawrence Rorke, and Anne Theresa Rorke.

Respondent, as trustee, has made distributions of trust principal to herself from the marital trust for her “health, education, support or maintenance” pursuant to Article II, paragraphs B.3(b) and B.4(b). In making those distributions, respondent did not take into consideration other resources available for her use — resources she received following settlor’s death — for those purposes for which the distributions were permitted. Distributions from the trust were not made in cash. Rather, shares of stock from the trusts were transferred by means of titling them in the name of respondent’s individual trust.

The petition that initiated this action sought, among other relief, judgment against respondent for “any distributions of principal made to or for [her] benefit,” plus interest and removal of respondent as trustee. The trial court’s judgment states, as applicable to those issues:

IT IS THEREFORE THE JUDGMENT AND ORDER OF THIS COURT that the accounting of [respondent] as successor trustee of the Daniel Arthur Rorke Jr. Trust dated December 21, 1989, is approved through December 31, 2003, as follows:
(a) The amount remaining due to [respondent] from the trust for her health, education, support, and maintenance for the year’s 2002 and 2003 and the remaining distribution of five percent (5%) of principal for the years 2002 and 2003 shall be Fifty Thousand and 00/100 Dollars ($50,000.00). This amount may be paid whenever there are assets available in the trust to do so.
(b) Withdrawals by [respondent] for her health, education, support, and maintenance for years 2004 and thereafter shall be limited to her actual living expenses, but not to exceed Seventy-five Thousand and 00/100 Dollars ($75,-000.00) per year. Other resources available to her shall not be considered.
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IT IS FURTHER THE JUDGMENT AND ORDER OF THIS COURT that [respondent] shall continue as successor trustee of the Daniel Arthur Rorke Jr. Trust.
IT IS FURTHER THE JUDGMENT AND ORDER OF THIS COURT that any claim of petitioner not specifically provided for herein are [sic] denied.
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Point I

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Related

Lanagan v. Rorke
182 S.W.3d 596 (Missouri Court of Appeals, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
182 S.W.3d 596, 2005 Mo. App. LEXIS 1832, 2005 WL 3280026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lanagan-v-rorke-moctapp-2005.