Lead Opinion
Thе first contention of the trustees is that since the trust agreement granted to the trustees a discretion as to the amount of the money to be used for the support of Otto Orkin, the trial court was without authority to interfere with such discretion. In support of this contention they cite Turner v. Trust Co. of Ga.,
The evidence, presented by verified petition and answer as well as affidavits submitted on the hearing and stipulated as the evidence, amply supported the findings of the trial court quoted in part as follows: “Under the evidence in this case it appears that there has been some arbitrariness on both sides in this case. The previous expenditures and obligations incurred by Mrs. Orkin indicate some degree of irresponsibility in the handling of the funds set apart for use for the beneficiary, Mr. Orkin. On the other hand, the total cessation by the trustees of providing funds, even for a few days or a few weeks was not only arbitrariness on the part of the trustees but also a failure to perform their duties under the trust agreement. There may be some mitigating circumstances but on the other hand it is an indication of the apparent vindictiveness between some of the trustees and Mrs. Orkin. It is easily perceivable that there is at least an aura of ill feeling and bitterness between some of the parties involved in this case.
“Under the law Mr. Orkin is obligated by law for the reasonable supрort and maintenance of his wife, including legal necessities. See Code § 53-510. The case of Thigpen v. Maddox,
“Thе chaotic course of supporting Mr. Orkin, including proper maintenance and support for Mrs. Orkin makes it very difficult
“It appears that Mr. Orkin is in the area of 80 years of age, that while he has been adjudicated to be incompetent to manage his affairs, he still has the capacity and desire to enjoy some of the pleasures and comforts of life to which a man who, by his own efforts, has aсquired substantial wealth is justly entitled. He also requires medical and professional care. In addition he has the legal obligation to support his present wife adequately and commensurately with his means and standard of living. Financial provisions for the uninterrupted continuity of these matters is the clear duty of the trustees under the trust agreement.
“Item 3 of that document provides that ‘in the event of donor’s (Mr. Orkin’s) incapacity for any reason, the trustees shall be authorized to pay and/or use so much of the net income as they deem necessary for his care, support, comfort and welfare.’
“In Item 4 (b) of the trust instrument it is specified that ‘In the event of the donor’s incapacity for any reason the trustees shall have the right to encroach upon the corpus of the trust estate in such amounts and at such times as they deem proper for donor’s care, support, comfort and welfare.’
“Thus it appears clear that Mr. Orkin is entitled to financial provision for his care, support, comfort and welfare whether it be from income or corpus. . . The trust should be so administered that there should be neither penurious policies on the one hand nor unbridled extravagance on the other. . . It appears from the trustees’ answer and the evidence that for some time the trustees paid $4,000 per month plus some additional sums for Mr. Orkin and his wife. At another time the monthly amount wаs $4,500 per month and then $2,000. At other times $3,000 per month were supplied and shortly prior to the filing of this suit no sums were actually paid for a period of approximately ten days and since that time, according to the affidavit of William B. Stark, dated November 23, 1966 (page 4) ‘Provision has alsо been made by the trustees for the payment of household needs for Mrs. Orkin, such as groceries, laundry expenses, trans
“Another feature of the case is the fact that the prosecution of the present Mrs. Orkin was apparently instigated by one of the trustees who says he was acting in his individual capacity and not as a trustee in his actions against thе present Mrs. Or-kin, the wife of Mr. Orkin. It also appears from the evidence before me that one of the attorneys for the trustees was active in the prosecution of the actions against Mrs. Orkin in Cobb County. The decisions here made have to take into account not only the background as referred to above but also the pattern of conduct engaged in by the trustees in connection with their disbursement of funds to or for the benefit of Mr. Orkin. Regardless of the obligations owed to the residual beneficiaries it is clear that the primary and major рurpose of the trust instrument was to provide a secure and adequate support, maintenance and upkeep of Mr. Orkin for the balance of his life. Mr. Orkin should not be supported in a meager manner in order to preserve some corpus for distribution to the residual beneficiaries. On the other hand he deserves that support which would enable him to live comfortably in accordance with his standard of living and his station in life and the amount of money there is to carry out the primary purposes of the trust. The preservation of the corрus of the trust for the residual beneficiaries (related to one of the trustees) should not be given priority over the adequate support of Mr. Orkin. . . Some of the evidence as to the actions of the trustees about Mrs. Orkin indicate that they have been prompted in some mеasure by an attitude of
The facts found by the trial court being supported by the evidence, the contention that the trial court was without jurisdiction to interfere with the administration of the trust is without merit and the remaining questions to be decided are whether the individual expenditures directed to be made would have been proper under the evidence if made without direction of the court.
When the size of the trust as well as the- funds furnished for the support of Otto Orkin prior to his being declared incompetent to manage his own affairs are considered it cannot be said the payments directed in the first three paragraphs of the judgment (for the support of Otto Orkin, medical expenses and allowance for his wife) are not authorized. In fact at times after Otto Orkin was declared incompetent the trustees furnished approximately the same amount decreed by the court to be furnished, while at other times they rеfused to furnish any money for his and his wife’s support.
The next question for determination is whether the judgment directing the payment of attorneys’ fees for services rendered the wife was proper. Pretermitting the question that no amount was set in the judge’s order, it is without question that a husband is bound to рrovide necessaries for his wife. Code § 53-510. In Thigpen v. Maddox & Griffin,
Attorneys’ fees were also directed to be paid for representing the Orkins in obtaining relief in the case sub judice. While the plaintiff sought in her own behalf and as next friend of her husband Otto Orkin to obtain support, it is an action in equity to require the proper administration of a trust, and under the decision in Ewing v. First Nat. Bank of Atlanta,
The remaining enumeration of error, which in effect held the matter of past expenses in abeyance until it could be determined from additional evidence which past due expenses were the responsibility of the trust and which were not, shows no error.
Judgment affirmed.
Dissenting Opinion
dissenting. With due deference to the opiniоn of the majority under the record as I view it, I am compelled to dissent. Under the trust agreement set up inter vivos by Mr. Orkin, the designated trustees were authorized in the event of Mr. Orkin’s incapacity for any reason “to pay and/or use so much of the net income as they deem necessary for his care, support, comfort and welfare” with the right to encroach upon the corpus of the trust “in such amounts and at such times as they deem proper for donor’s care, support, comfort and welfare.” It is well settled that where the instrument creating the trust confers upon the trustees a broad discretionary power to be exercised according to their judgment, a court of equity will not interfere to control the trustees acting bona fide in the reasonable exercise of their discretion. Semmes v. Mayor &c. of Columbus,
I am of the further opinion that the trust fund can not be used to pay counsel for Mrs. Orkin in representing her in criminal cases growing out of her acts as guardian for her husband, nor is the trust fund liable for the expenses of bringing the present action. Neither of these acts of her counsel sought for its purpose to preserve or conserve the trust estate. The case of Ewing v. First Nat. Bank of Atlanta,