Papiernik v. Papiernik

544 N.E.2d 664, 45 Ohio St. 3d 337, 1989 Ohio LEXIS 244
CourtOhio Supreme Court
DecidedSeptember 27, 1989
DocketNo. 88-367
StatusPublished
Cited by18 cases

This text of 544 N.E.2d 664 (Papiernik v. Papiernik) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Papiernik v. Papiernik, 544 N.E.2d 664, 45 Ohio St. 3d 337, 1989 Ohio LEXIS 244 (Ohio 1989).

Opinion

Evans, J.

This case presents three issues for our consideration: first, whether the remainder beneficiaries of a trust have sufficient interest in the trust to create standing to maintain an action to modify the trust when the income beneficiary has an absolute power of appointment over all assets in the trust; second, whether it is error for a court of equity to strike from the trust instrument provisions creating the position of trust advisor when continued use of trust advisors will not defeat or substantially impair the accomplishment of the trust purpose; and, third, whether it is proper for a court of equity to remove a trust ad-visor from office for misconduct when the trust advisor is also the sole income beneficiary of the trust and the possessor of an absolute power of appointment over all assets in the trust. We answer all three queries in the affirmative for the reasons which follow and accordingly reverse the court of appeals on the issue of standing to sue and on the issue of removal of a trust advisor from office, and reinstate the order of the trial court on both issues. We affirm the court of appeals on the issue of striking the trust provisions which create the office of trust advisor and order those provisions restored to the trust instrument.

The first issue to be resolved is that of the standing of the Papiernik brothers to bring this action for the removal of their mother, Elizabeth, as a trust advisor, and for the modification of the trust instrument by deleting the provisions which created that position.

The appellee contends that appellants must have an interest in both Trust A and Trust B if they are to maintain an action to delete the trust provisions which create the position of trust advisor since those provisions apply to both Trust A and Trust B. Ap-pellee argues that appellants must survive Elizabeth and she must refrain from fully exercising her unlimited testamentary power of appointment before appellants will have any interest in the assets of Trust A. Therefore, appellants have a contingent remainder subject to a condition precedent which is not sufficient to give them standing to sue. Appellants contend that their interest in the assets of Trust A is a vested remainder subject to defea-sance by the exercise of the power of appointment.

Before we can decide the matter of standing, we must determine the nature of the appellants’ interest in Trust A.

2 Restatement of the Law, Property, Future Interests (1936) 561, Section 157, Comment u, defines a “remainder subject to a condition precedent” as follows:

“Remainder subject to a condition precedent — Uncertainties. When a limitation creates a remainder and it is not possible to point to any person and to say such person would take, if all interests including a prior right to a present interest should now end, this remainder is subject to a condition precedent. This uncertainty distinguishes this type of remainder from those vested subject to open (Comment l) and from those vested subject to complete defeasance (Comment p).”

A “vested remainder subject to a complete defeasance” is defined at 554-555, Section 157, Comment p, as follows:

“Remainders vested subject to complete defeasance — Certainty of taker but uncertainty as to present interest being acquired or retained. When a remainder is vested subject to complete [343]*343defeasance it is possible to point to a person and to say that such person would take, if all interests including a prior right to a present interest should now end. In this regard this type of remainder is like a remainder vested subject to open (compare Comment l). But the person thus clearly identified has no certainty of retaining such present interest as he may acquire and commonly has no certainty of ever acquiring any present interest in the affected thing. These uncertainties can be caused by any one of several factors. The remainder may be so created as to be capable of expiration before the interests including a prior right to a present interest end (see Illustration 11). The remainder may be created so as to terminate in accordance with the terms of a special or executory limitation (see Illustrations 12 and 13), or by an exercise of a power had by some person (see Illustration 14).” (Emphasis added.)

1 Simes & Smith, The Law of Future Interests (2 Ed. 1956) 95, Section 113, states:

“Vested Remainders Subject to Complete Defeasance.

“As indicated above, remainders may be classed as ‘vested’ even though they are subject to complete de-feasance. The limitations which will result in the creation of this kind of remainder are very numerous, and it would be futile to try to enumerate all of them. It is, however, possible to indicate the common types of limitations which create a remainder subject to complete defeasance, and such is the purpose of this section.

“Before doing so, however, it is important to notice the content of the term ‘defeasance.’ It is a characteristic of all vested remainders that the holder thereof be a person in being who would be entitled to take possession of the land if all prior interests were to terminate. But, there are many occasions in which neither that person who would be entitled to take if the preceding interests were to end nor his successors will ever enjoy possession. If such a possibility exists, then the remainder is subject to complete defeasance. Similarly, there are many occasions in which the person who becomes entitled to possession and enjoyment or his successors may not be certain of continuing that possession through the termination of the estate. Here, too, the remainder is ‘subject to complete defeasance.’ It is thus clear that the term ‘defeasance’ includes both the process by which an interest expires by its own terms before it ever becomes possessory, and the process by which an interest is cut short by reason of some executory limitation or by the exercise of some power.”

In First Natl. Bank of Cincinnati v. Tenney (1956), 165 Ohio St. 513, 60 O.O. 481, 138 N.E. 2d 15, the court stated in paragraph two of the syllabus:

“An inter vivos trust which reserves to the trustor the income for life and an absolute power to revoke during his lifetime, with a remainder over at his death, creates in the re-mainderman a vested interest subject to defeasance by the exercise of the power to revoke.”

In this case we have a life tenant with an absolute power to appoint rather than a trustor with an absolute power to revoke. The exercise of either power would defease the remainder interest. We can find no difference between the position of the remainder-men in First Natl. Bank of Cincinnati v. Tenney, supra, and the position of the remaindermen in this case. We hold that an inter vivos trust which, on the death of the grantor, allocates substantially all the trust assets to a [344]*344marital deduction trust with the entire income therefrom payable to the surviving spouse, and which grants an unlimited testamentary power of appointment to the surviving spouse with the remainder over to the children of the grantor, creates in the remainder-men a vested interest subject to de-feasance by the exercise of the power of appointment.

Thus, the interest of the re-maindermen in the Papiernik Trust is a vested interest subject to complete de-feasance.

In State, ex rel. Dallman, v. Court of Common Pleas (1973), 35 Ohio St. 2d 176,178, 64 O.O.

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Cite This Page — Counsel Stack

Bluebook (online)
544 N.E.2d 664, 45 Ohio St. 3d 337, 1989 Ohio LEXIS 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/papiernik-v-papiernik-ohio-1989.