dissenting.
The majority holds that the Bank, as Trustee of the inter vivos trust, can reimburse funds which the Bank, as Trustee of the testamentary trust, previously expended without authority to do so. In my opinion, such a collusive reimbursement of the testamentary trust from the funds of the separate inter vivos trust is unauthorized. Therefore, I must respectfully dissent.
The majority concludes that the reimbursement is proper because the funds of the testamentary trust were disbursed for a purpose which the Bank, as Trustee of the inter vivos trust, could have expended the funds of that trust in the first instance. However, it is an accepted principle of law that a trust is a legal entity separate from any and all other legal entities. Henderson v. Collins, 245 Ga. 776, 780-781 (5) (267 SE2d 202) (1980). This principle is clearly applicable here, even though the testamentary and inter vivos trusts have a common Settlor, Trustee and Beneficiary. “It is ordinarily the duty of the trustee ... to keep the trust property separate from property held upon other trusts ....” Restatement (Second) of Trusts, § 179, Comment a. Thus, unlike the majority, I believe that it is immaterial that, when the disbursements were made, the Bank, as. Trustee of the inter vivos trust, could have validly paid the same amounts from the trust estate. Because the inter vivos trust is an entirely separate legal entity, the initial inquiry is whether the Bank, as Trustee of the inter vivos trust, has the authority to reimburse the separate testamentary trust for the expenditures. See generally Ivey v. Ivey, 266 Ga. 143, 144 (3) (465 SE2d 434) (1996). The majority cites nothing which authorizes the Bank, as Trustee of the *553inter vivos trust, to deplete the corpus of that separate trust for the purpose of reimbursing the testamentary trust for past voluntary expenditures made on behalf of the Beneficiary. The trust agreement creating the inter vivos trust only authorizes the Bank, as the Trustee thereof, to provide directly for the Beneficiary’s present and future needs, and does not permit it to reimburse another for the volitional payment of the Beneficiary’s past expenses. See generally Gilmore v. Gilmore. 201 Ga. 770, 777 (41 SE2d 229) (1947); OCGA § 13-1-13. Therefore, by allowing the Bank to be reimbursed for the sums intentionally expended in breach of its fiduciary duty as Trustee of the testamentary trust, the majority authorizes the Bank also to commit a separate breach of its fiduciary duty owed as Trustee of the inter vivos trust. Having voluntarily made the unauthorized expenditures from the testamentary trust, the Bank should not be entitled to reimbursement from the inter vivos trust, the terms of which do not authorize its Trustee to make such reimbursement.
The majority concludes that a failure to order reimbursement from the separate inter vivos trust would result in a “windfall” to the Beneficiary. However, if, under the terms of the inter vivos trust, its Trustee is not authorized to make reimbursement for past voluntary expenditures, then a court-ordered reimbursement from the inter vivos trust would constitute an unjustified boon to the Bank. Contrary to the Settlor’s expressed intent in creating the inter vivos trust, such an order would allow the Bank to recoup from that legal entity money lost as the result of the breach of its fiduciary duty to the separate testamentary trust. This would violate the universally accepted and well settled rule of construction that it is the intent of the Settlor that controls. See Perling v. C&S Nat. Bank, 250 Ga. 674, 676 (1) (300 SE2d 649) (1983). Having breached its fiduciary duty as Trustee of the testamentary trust by the unauthorized expenditure of funds from that source, the Bank should not be allowed to recoup that loss by obtaining court-ordered reimbursement from the separate inter vivos trust. This would constitute an unauthorized encroachment upon the corpus of the inter vivos trust to reimburse for funds which the Bank voluntarily disbursed from the testamentary trust contrary to the Settlor’s instructions. There is no contention in this case that, if the Settlor had named separate Trustees for the testamentary and inter vivos trusts, the Trustee of the inter vivos trust would be authorized to reimburse the Trustee of the testamentary trust for funds wilfully expended contrary to the Settlor’s directions and, consequently, in violation of the duty owed as a fiduciary. Although the Settlor did name the Bank as Trustee of both trusts, he nevertheless created two separate trusts which the Bank is compelled to recognize as two separate legal entities. Under the majority’s analysis, the Bank is authorized to ignore the Settlor’s *554directions and to disregard the separateness of the two legal entities, simply because the Settlor named the Bank as Trustee of both trusts.
Decided September 22, 1997 — Reconsideration denied November 3, 1997. Hawkins & Parnell, Jack N. Sibley, Cullen C. Wilkerson, for appellants. Stewart, Melvin & Frost, J. Douglas Stewart, W. Woodrow Stewart, Caldwell & Watson, Harmon W. Caldwell, Jr., Wade H. Watson III, for appellees.*554We know of no authority of law for the mingling of trust funds proposed by this inquiry. Not for a moment could it be considered if the two trusts were to be administered by distinct trustees. That the trustees were or are the same, or that the corpus of each fund finally is to be paid to the same person, can make no difference. Each trust must stand alone, otherwise losses legitimately to be borne, with corresponding loss of income by one, could be imposed in part upon the other.
Moore v. McKenzie, 92 A 296, 298 (Me. 1914).
Thus, the mere fact that, when made, the expenditures on behalf of the Beneficiary could have come from the inter vivos trust does not justify the Bank’s recoupment from that trust. Because it made the voluntary expenditures from the testamentary trust, the Bank would not be entitled to seek reimbursement unless such reimbursement were authorized under the terms of the inter vivos trust. The majority’s holding
does not recognize that there are limitations within which trustees and the court must keep in the administration of trusts. The plan of the trustor must be followed. It may not be departed from in particulars wherein it is specific, merely because it may be considered in those particulars to be unwise. The trustee cannot substitute his own plan because he thinks it is a better one, and if he does the court should not approve his action to the prejudice of any beneficiary, even if it has operated to the general advantage of the estate.
(Emphasis supplied.) In re Bothwell’s Estate, 151 P2d 298, 302 (Cal. App. 1944). Because the majority’s holding violates the principle that each trust is a separate legal entity whose trustee has the fiduciary duty to perform in accordance with the Settlor’s directions, I dissent.
I am authorized to state that Chief Justice Benham and Justice Hunstein join in this dissent.