I strongly dissent from the majority opinion. Foremost, in support of my dissent, is the need for the maintenance of the integrity of the fiduciary functions as set forth in the Ohio Revised Code and as anticipated by all who rely on the qualifications of the person or institution named as fiduciary in their wills. The fiduciary, after all, is the alter ego of the deceased, after death, whose function is to carry out the testator's or settlor's intent in the will or trust instrument.
It is my firm belief that a fiduciary, no matter how well informed or intentioned, when confronted with conflicting trust provisions contained in the will, has a duty not only to the settlor, but to the beneficiaries of the trust as well to apply to the court for a judicial determination of the meaning of the terms of the trust. Until that determination is made by the court, the discretion to be exercised by the trustee is without foundation. The appropriate duties and proper functions of the trustee cannot be bottomed on conflicting language simply because it purportedly carried out what it believed was the purpose of the trust.
I find it difficult to reconcile the majority opinion with its citations. At one point, it said:
"Admittedly, the trust language invested SNB with wide discretion in managing and distributing the trust assets. However, the trust's grant of broad administrative authority did not alter SNB's continuing duty to act reasonably and in the best interests of the trust's beneficiaries. Black v. ClevelandTrust Co. (Feb. 12, 1981), Cuyahoga App. No. 42033, unreported, 1981 WL 10206."
A few paragraphs later, it said: *Page 84
"R.C. 2109.24 authorizes the trial court to remove a fiduciary when `the interest of the trust demands it.' The removal of a fiduciary pursuant to this statute is within the sound discretion of the trial court. In re Estate of Jarvis (1980), 67 Ohio App. 2d 94, 21 O.O.3d 411, 425 N.E.2d 939, syllabus. `The removal of a trustee is a drastic action which should only be taken when the estate is actually endangered and intervention is necessary to save trust property.' In re Estateof Bost (1983), 10 Ohio App. 3d 147, 149, 10 OBR 199, 201,460 N.E.2d 1156, 1159.
"There was no evidence that SNB acted in bad faith or recklessly by distributing the trust income to Tabach. Although it is clear that the better action would have been to include the needs of appellants Kates and Davis in its determination of distribution, that action does not warrant the removal of SNB as trustee.
"The record indicates that SNB made a good faith effort to act under what it believed was the purpose of the trust. While SNB could have acted more wisely, its handling of the trust income did not amount to a total abuse of its discretion as trustee. See Caswell v. Lenihan (1955), 163 Ohio St. 331, 338, 56 Ohio Op. 309, 311-312, 126 N.E.2d 902, 905-906."
Two of the supportive citations above, interestingly enough, were affirmances by this court of lower court proceedings where the fiduciaries were removed because the best interest of the estate required it.
To the extent the fiduciary function of appellee Society National Bank clearly is within its understanding and knowledge as a trustee, the blame for its failures cannot and should not be passed on to the appellants herein. Simply because each had seen the will of the settlor, and had never made any objection to the distribution of the trust until 1985, does not constitute ratification of SNB's conduct so as to estop them from complaining when they did.
Understandably, the issue here is whether the trial court abused its discretion in the orders on appeal. Within the reasoning set forth herein, I would so hold and would reverse and remand for further proceedings. *Page 85