55 N.C. App. 697 | N.C. Ct. App. | 1982
Plaintiff assigns as error the court’s ruling that the terms of the Christine M. Geitner testamentary trust gave defendant trustees sole discretion, and the right to exercise such discretion, in determining whether to contribute to the support of David R. Geitner. Plaintiff argues that the trust’s terms require defendants to make a contribution from the testamentary trust whenever the income from the guardianship account is not sufficient to pay for David R. Geitner’s support for the relevant year.
The powers of a trustee are either mandatory or discretionary. A power is mandatory when it authorizes and commands the trustee to perform some positive act. ... A power is discretionary when the trustee may either exercise it or refrain from exercising it, . . . or when the time, or manner, or extent of its exercise is left to his discretion.
Woodard v. Mordecai 234 N.C. 463, 471, 67 S.E. 2d 639, 644 (1951). [Emphasis added.]
The language of the testamentary trust in the present case charges the trustees “[t]o use any part of the income from and/or corpus of said Trust which, in the sole discretion of said Trustees, may be necessary or proper for the support, maintenance and
Plaintiff also assigns error to the court’s ruling that the trustees did not abuse their discretion in refusing to contribute to David R. Geitner’s support.
The court will always compel the trustee to exercise a mandatory power. ... It is otherwise, however, with respect to a discretionary power. The court will not undertake to control the trustee with respect to the exercise of a discretionary power, except to prevent an abuse by him of his discretion. The trustee abuses his discretion in exercising or failing to exercise a discretionary power if he acts dishonestly, or if he acts with an improper even though not a dishonest motive, or if he fails to use his judgment, or if he acts beyond the bounds of a reasonable judgment.
Woodard v. Mordecai, supra at 471, 67 S.E. 2d at 644.
In the present case, evidence was presented that defendant trustees, in exercising their discretion as to whether to distribute to David R. Geitner, annually examined the plaintiff’s reports on the costs for David’s care, considered the size of the guardianship
Plaintiff also assigns as error the court’s “establishing the plaintiff’s burden of proof to be such that the plaintiff was under a duty to produce the maximum income possible,” and the court’s “imposing its investmental philosophies upon the guardian.” There is nothing, however, in the record or in the judgment to indicate that the court considered plaintiffs investmental policy or that it based its decision on any failure by plaintiff to produce the maximum income possible. Rather, the court’s judgment that defendants are not presently required to contribute was amply supported by conclusions of law, which were supported by findings of fact, which in turn were supported by competent evidence that defendants had not abused their discretionary powers. These assignments of error are without merit.
Plaintiff further assigns error to the following finding of fact made by the court:
15. From the inception of the guardianship on May 19, 1961, through June 19, 1975, when David R. Geitner was conditionally released from Broughton Hospital, the assets held by the Bank as guardian for David R. Geitner generated more income than was necessary for his proper upkeep. After reviewing the final account filed by the guardian each year, the trustees under the Christine M. Geitner Trust determined that David R. Geitner had suffficient income from his personal assets. (Exception No. 4)
“When findings that are . . . supported by competent evidence . . . are sufficient to support the judgment, the judgment will not be disturbed because another finding, which does not affect the conclusion, is not supported- by evidence.” Dawson Industries, Inc. v. Godley Construction Co., 29 N.C. App. 270, 275, 224 S.E. 2d 266, 269, disc. rev. denied, 290 N.C. 551, 226 S.E. 2d 509 (1976). As previously stated, the court’s judgment that defendants are not presently required to contribute to the maintenance of David R. Geitner is sufficiently supported by the evidence, findings and conclusions. The finding of fact challenged by this assignment of error is not critical in providing such support. Nevertheless, the challenged finding is supported by the evidence. The finding pertains only to those years in which there was no income deficit, i.e., 1961-75, and there was evidence that defendants determined the income to be sufficient for those years. The assignment of error is overruled.
Finally, plaintiff assigns error to the following ruling made by the trial court:
Under the testamentary trust created in the Will of Christine M. Geitner, the trustees may consider the entire personal estate of David R. Geitner in determining whether to contribute to his support in any given year. Until the principal of the guardianship account of Plaintiffs ward and the income earned by said guardianship account are diminished to the point to where the income and corpus of the guardianship estate will no longer sufficiently supply the proper sums for the support, maintenance and comfort of the Plaintiff’s ward, the Defendant-Trustees shall not be required to contribute to the support of the Plaintiff’s ward.
Necessarily included within the second sentence of the challenged ruling is a subsidiary ruling that defendant trustees shall not presently be required to contribute to the support of plaintiff’s ward. Since a court will not compel a trustee to exercise a discretionary power absent an abuse of discretion by the trustee, Woodard v. Mordecai, supra, and since we have held that
The result is as follows: That part of the judgment ruling that defendants are not presently required to contribute to David R. Geitner’s support is affirmed; that part of the judgment ruling that defendants shall not be so required until the income and corpus of the guardianship account are insufficient for the support of plaintiff’s ward is vacated.
Affirmed in part and vacated in part.