Otwell v. First National Bank

491 S.E.2d 785, 268 Ga. 547, 97 Fulton County D. Rep. 3505, 1997 Ga. LEXIS 609
CourtSupreme Court of Georgia
DecidedSeptember 22, 1997
DocketS97A0724
StatusPublished
Cited by1 cases

This text of 491 S.E.2d 785 (Otwell v. First National Bank) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Otwell v. First National Bank, 491 S.E.2d 785, 268 Ga. 547, 97 Fulton County D. Rep. 3505, 1997 Ga. LEXIS 609 (Ga. 1997).

Opinions

Sears, Justice.

Appellants challenge the trial court’s decision permitting the trustee of two trusts established for the benefit of one beneficiary to transfer funds from one trust to another trust, in order to reimburse the latter trust for expenditures made on the beneficiary’s behalf. The trust instruments direct that the trust from which the funds originally were paid is not the primary source for expenditures to benefit the beneficiary, but rather is the secondary source. The primary source for such expenditures is the trust from which reimbursement was sought. Pretermitting whether the trustee violated its fiduciary duties by failing to follow the trust instruments’ directives, the payments, had they been paid out of the primary trust, would have been authorized and for a proper purpose. Moreover, by allowing the trustee to transfer funds from one trust to another, the trial court did not disturb the grantor’s overall scheme of disposition and testamentary intent. Therefore, we agree with the trial court that the trustee could reimburse funds paid out of the secondary trust from the primary trust, and we affirm.

In 1984, Roy P. Otwell, Sr., (“Otwell, Sr.”) created an inter vivos trust in which the First National Bank of Gainesville (“The Bank”) was appointed trustee. The trust instrument authorizes the Bank to pay all or any part of trust income to Roy Otwell, Jr. (“Otwell, Jr.”), or, alternatively, to accumulate such income as trust principal. If necessary, the Bank also is authorized to encroach upon the inter vivos trust’s corpus to provide for Otwell, Jr. The inter vivos trust grants the Bank, as trustee, “power to do all things and to execute such instruments as may be deemed necessary or proper, including the powers enumerated in [Ga. L. 1973, pp. 846-856].”1 Upon Otwell, [548]*548Jr.’s death, the inter vivos trust directs the Bank as trustee to distribute any remaining corpus equally among Otwell, Jr.’s two adult children, or, if they are deceased, to their descendánts. Otwell, Jr. has been declared legally incompetent, and his two children are his appointed guardians.

In 1987, Otwell, Sr. executed his last will and testament, in which he directed that upon his death, one quarter of his estate was to be placed in a testamentary trust for the benefit of Otwell, Jr. The remaining three quarters of Otwell, Sr.’s estate was devised to his three daughters, Otwell, Jr.’s siblings. After Otwell, Sr. died in 1988, a caveat was filed against his will by Otwell, Jr. and his children, who had not been mentioned in their grandfather’s will. In order to resolve the caveat, a consent order .was entered that modified the terms of both Otwell, Sr.’s will and the testamentary trust.* 2 The will was modified to devise $100,000 each to Otwell, Jr.’s children, and to place Otwell, Sr.’s home in trust, with the Bank as trustee, for Otwell, Jr. to reside therein until his death, at which time the home will pass to his two children. Provision also was made to pay over a quarter of a million dollars in attorney and administrative fees out of the estate.

The consent order modified the terms of the testamentary trust to authorize the Bank to expend testamentary trust income for Otwell, Jr.’s benefit in those years in which his income from other sources, including the inter vivos trust, is insufficient to maintain him. Such income expenditures from the testamentary trust are authorized only when Otwell, Jr.’s income from other sources has been depleted; excepting that, regardless of whether Otwell, Jr.’s income from other sources has been depleted, the Bank is authorized to use testamentary trust income to pay for (1) taxes and insurance on Otwell, Jr.’s home, (2) Otwell, Jr.’s hospitalization and health care, and (3) extraordinary homeplace maintenance expenses.3 Testamentary trust principal may be invaded only after all other available principal and income has been depleted, and the testamentary trust (as modified) expressly states that its principal should remain constant unless and until the principal of the inter vivos trust is depleted. Upon Otwell, Jr.’s death, any remaining corpus of the testamentary trust is to be divided equally among his two children and his [549]*549three siblings.

Otwell, Sr. died in 1988. In the five years that followed, the Bank made considerable expenditures, alleged to exceed $225,000, primarily to renovate Otwell, Sr.’s home, which had fallen into disrepair, before Otwell, Jr. and his caretakers took up residency. The expenditures were paid directly from the portion of Otwell, Sr.’s estate intended to fund the testamentary trust. However, during those five years, the testamentary trust was not established, as instructed in Otwell, Sr.’s will. The Bank states that the expenditures it paid from the estate exceeded the income of the testamentary trust assets, as calculated based upon one-fourth of the entire estate’s value, and thus had to be charged against assets designated for the testamentary trust’s principal. In order to rectify the depletion of testamentary trust principal, the Bank sought to transfer funds from the corpus of the inter vivos trust to the testamentary trust. Otwell, Jr.’s children, acting on their own and on his behalf, opposed that transfer.

It was not until 1993 that the testamentary trust was funded. In 1995, the Bank filed a declaratory judgment action concerning its administration of the estate and the trusts, and the trial court granted the Bank partial summary judgment authorizing it to transfer funds from the inter vivos trust to the testamentary trust in order to cover the expenditures made from estate funds eventually used to establish the testamentary trust. Otwell, Jr.’s children, acting on their own and on his behalf (“Appellants”), appeal from that ruling, claiming that the Bank did not have authority to transfer the funds.

1. At the outset, we note that Appellants also claim that the Bank has breached its fiduciary obligations by, among other things, (1) failing to comply with the trust instruments’ directives; (2) not establishing the testamentary trust until August 1993; (3) not using inter vivos funds before expending Otwell, Jr.’s share of the estate; (4) not limiting its spending on Otwell, Jr.’s behalf in a reasonable manner; and (5) attempting to disperse less than equal shares to Otwell, Sr.’s children. In granting partial summary judgment affirming that the Bank had the authority to reimburse the testamentary trust from the inter vivos trust, the trial court reserved ruling on whether the Bank had violated its fiduciary duties, as alleged by Appellants. That particular issue remains pending before the trial court.

Likewise, in reviewing the trial court’s ruling authorizing the Bank to transfer money from one trust into another, this Court does not decide whether the Bank properly discharged its fiduciary obligations, and Appellants’ claims of fiduciary breach are not considered as part of this appeal.

2. Appellants argue that the terms of the inter vivos trust only [550]*550permit payments to be made for the benefit of Otwell, Jr., and that those terms do not authorize the Bank to transfer funds to the testamentary trust. Furthermore, they claim that the testamentary trust does not permit expenditures from trust principal until all other sources of principal ¿nd income have been depleted. Therefore, Appellants argue, the disbursements made by the Bank were unauthorized, and the Bank should not be permitted to correct its error by replenishing the testamentary trust with another trust’s funds.

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Bluebook (online)
491 S.E.2d 785, 268 Ga. 547, 97 Fulton County D. Rep. 3505, 1997 Ga. LEXIS 609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otwell-v-first-national-bank-ga-1997.