concurring. I concur with much of the reasoning and certainly the result in the majority opinion and write only to emphasize one facet of the opinion. The Trust Agreement sets out what appears to be a conflict between the settlor/trustee’s right to revoke the trust at his discretion at any time, and the termination of the trust by delivery of the stock to the beneficiaries after they have all attained age twenty-five, or completed their education. Thus, under the Trust Agreement either the settlor could terminate the trust, or it is terminated by a transfer of the stock. I conclude that the settlor/ trustee effectively terminated the trust by not delivering the stock to the beneficiaries.
My decision in this case is guided by the termination clause in the Trust Agreement, which reads: “thereafter [after the last child has been educated or reaches age twenty-five], the Trustee shall deliver the entire remaining principal over to the above named absolutely, and this trust shall then terminate.” The settlor/trustee never delivered the trust res to his three children as required. The question then is whether his failure to deliver the stock was a breach of the Trust Agreement or a revocation by the settlor/trustee. I conclude it was a revocation.
Had Hervey Aycock served only as trustee and refused to deliver the property under the trust’s terms, it would certainly have been a breach of trust. But Hervey Aycock was also the creator of the trust, as settlor, with fulsome powers to revoke it at any time at his discretion. Hence, he had the power to terminate the trust on his own. It is axiomatic that the intent of the settlor is an important consideration in enforcing a trust. Richards v. Worthen Bank & Trust Co, 261 Ark. 890, 552 S.W.2d 228 (1977); Anderson v. Ryland, 232 Ark. 335, 336 S.W.2d 52 (1960). By not transferring the stock to his children after they were educated and were age twenty-one or older, Aycock as settlor effectively revoked the trust and terminated it.
I would give deference to the settlor’s intent and powers and affirm the trial court’s decision for that reason.