Smith v. Underwood

Judge JOHN

dissenting.

I respectfully dissent from the majority’s ruling regarding removal of respondent Underwood as co-trustee, and vote to uphold the trial court’s conclusion he “continues to be a suitable person to continue as Co-Trustee” as well as its consequent decision (“in its discretion”) not to remove him.

The majority properly observes N.C. Gen. Stat. § 36A-28 (1991) provides “the facts found by the judge shall be final and conclusive” upon appeal to this Court. Despite this, the majority, “[i]n examining the trial court’s findings of fact as well as the evidence,” states it finds an abuse of discretion on the part of that court in concluding the eighty year old respondent herein “continues to be a suitable person to continue as Co-Trustee.”

When on appeal it is contended a conclusion of law is not supported by facts found, we need only inquire whether the particular conclusion was “proper in light of such facts." Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992) (citation omitted); In re Norris, 65 N.C. App. 269, 275, 310 S.E.2d 25, 29 (1983) (citation omitted), disc. review denied, 310 N.C. 744, 315 S.E.2d 703 (1984). In the case sub judice, the trial court, having heard the evidence and determined what weight to attach to it, as well as having observed the witnesses and their demeanor and assessed the weight and credibility of their testimony, made the following “conclusive” findings of fact:

11. The approximate value of the Ada T. Smith Trust in 1954 was One Hundred Thousand and No/100 Dollars ($100,000.00) to One Hundred Twenty-Five Thousand and No/100 Dollars ($125,000.00).
12. Each and every year since the inception of the Ada T. Smith Trust, income has been generated by the Trust . . . .
13. In 1969, Ada T. Smith began exercising the power . . . to have portions of the corpus of the Ada T. Smith Trust conveyed to her, free and discharged of the Trust as [follows: between 1969 and 1988, properties having a total value in excess of Seven Hundred and Five Thousand, Nine Hundred and Fifteen and No/100 Dollars ($705,915.00)].
14. The corpus of the Ada T. Smith Trust at the present time (Dec. 1991) consists of . . . two tracts of land, the value *56. . . being approximately Three Hundred Fifty Thousand and No/100 Dollars ($350,000.00), and stocks valued at approximately Twenty-Five Thousand and No/100 Dollars ($25,000.00).
15. The Respondent, Sam B. Underwood, Jr., and [the Co-Trustee] . . . made the investment decisions with regard to the corpus of the Ada T. Smith Trust.
16. In 1954, at the inception of the W. H. Smith Trust, the corpus of the . . . Trust had a value of approximately One Hundred Forty-Thousand and No/100 Dollars ($140,000.00).
17. In each and every year since the inception of the W. H. Smith Trust, the said Trust has generated income for the beneficiaries thereof.
18. In 1990, the income of the W. H. Smith Trust was approximately Fifty Thousand and No/100 Dollars ($50,000.00).
19. At the present time (Dec. 1991), the W. H Smith Trust corpus consists of land, stocks, and notes payable, with a total value of approximately One Million and No/100 Dollars ($1,000,000.00).
20. The Respondent, Sam B. Underwood, Jr. and [the Co-Trustee] . . . made the investment decisions with regard to the corpus of the W. H. Smith Trust.
23. Each and every year since the inception of the Ada T. Smith Trust and the W. H. Smith Trust, the beneficiaries of the trusts have received checks for their respective interests in the net income of the trusts and have been provided an accounting of the same. Further, the beneficiaries of the trusts have been provided a United States income tax Form K-l showing their net trust income.
33. [D]uring the existence of both of the aforesaid Trusts, . . . both . . . appeared to have been honestly and diligently maintained and operated.

In the “light of such facts,” Norris, 65 N.C. App. 275, 310 S.E.2d at 29, I respectfully contend the trial court’s conclusion of law respondent is a suitable person to remain in the position *57of co-trustee was proper and amply supported by its findings. We should not, at this stage, second-guess the court’s reasoning and attempt to impose any differing opinion we may have; it was in a better position than we to assess co-trustee’s honesty and diligence over the course of more than thirty years.

Furthermore, while the majority properly acknowledges removal of a trustee is a discretionary decision, I believe close reading of the White decision it cites indicates a result different from the majority’s holding herein:

A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason. A ruling committed to a trial court’s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.

White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985) (citation omitted) (emphasis added). Although the majority suggests the decision not to remove the co-trustee is “manifestly” irrational, I respectfully submit the trial court’s “conclusive” findings, including that the trusts have rendered income to the beneficiaries each year and that the value of the corpus of each trust has increased substantially since 1954, demonstrate that the court’s decision was neither irrational nor arbitrary, but rather resulted from a reasoned balancing of the competing facts found by the court.

According “great deference,” id., to the “conclusive” findings supporting the court’s determination as well as to the discretionary decision to retain this co-trustee requires, I respectfully contend, the action of the trial court to be affirmed in this instance. I vote to do so with respect to the court’s order in its entirety.