dissenting.
The heart of the majority opinion is its unarticulated adoption of the position argued by Trust Company on this appeal, namely, that even if Trust Company had behaved with bad faith toward Mrs. Woodruff, which is what she asserts, and even if this bad faith had occasioned her the loss of four million dollars, nonetheless Trust Company was entitled to prevail on a motion for summary judgment in her suit to recover the loss. Thus, Trust Company argues that the bad faith of a trustee is irrelevant. This argument, adopted by the majority, must rest on this purported statement of trust law: A trustee is absolutely entitled to file a petition for declaration of rights and to litigate it against his beneficiary to the bitter end, so long as there is some mere possibility that the trustee’s claimed confusion over trust language might be genuine, even if the record should show that the trustee is motivated to file the petition by bad faith toward his beneficiary, and does so for the purpose of delay and harassment only.
This simply misstates trust law. The authorities are crystal clear that in the decision to file a petition for declaration of rights — as in every other decision that a trustee makes — he is held to the standard of absolute good faith. See Restatement 2d, Trusts, § 186 comments e, f; § 187 comments c, d; § 330 comment e (1959); Bogert, Trusts and Trustees, § 543, p. 526; § 543(T) (2d ed. 1960); 2 Scott on Trusts, p. 1297, § 170 (3d ed.); Fulton Nat. Bank v. Tate, 363 F2d 562, 571 (5th Cir. 1966); C. & S. Nat. Bank v. Orkin, 223 Ga. 385, 388 (156 SE2d 86) (1967); Springer v. Cox, 221 Ga. 673, 676 (146 SE2d 753) (1966); Cates v. Cates, 217 Ga. 626, 632 (124 SE2d 375) (1962).
In order to prevail on its motion, Trust Company was required to negate all possibility that Mrs. Woodruff could prevail on her claim; to carry the burden on all points, even those on which she would have the trial burden; to allow the construction of all inferences in her favor; and to show that there were no material issues of fact yet to be decided. E.g., Burnette Ford, Inc. v. Hayes, 227 Ga. 551 (181 SE2d 866) (1971).
*226In my opinion Trust Company failed to carry this burden, and genuine issues of material fact remain to be tried by a jury. Therefore, I dissent.
I am authorized to state that Chief Justice Nichols concurs in this dissent.