(dissenting).
While, as the opinion indicates, the record shows the trust fund was established from proceeds of the dwelling house of Henry Carlson, Jr. and Emma Lou Carlson, the trust agreement is between Emma Lou Carlson and the Trustee Bank only, and it acknowledges she "transferred and set over" to the Trustee the $38,000 trust fund, and the Trustee acknowledges receipt of it from her alone. The money had to be hers or she could not have legally created the trust. Henry Carlson, Jr. was not a party to the trust agreement and he has only a future interest contingent on the remarriage of Emma Lou or her death and the death of both children before they reach 21 years of age. The agreement could not and did not relieve the father of his obligation to support the minor children and if the trust had been lost or insufficient he could have been required to support them. It is assumed the father's duty to support his minor child and he may not use the minor's estate unless he is unable to do so. This has been extended to a mother. In re Weisskopf's Estate, 39 Ill.App.2d 380, 188 N.E.2d 726.
The construction of the trust is obviously a question of intent. Ingalls v. Ingalls, 1951, 256 Ala. 321, 54 So.2d 296, 307. As the opinion indicates no part of the divorce file is in the record. It is clear the mother was given and had custody of the two daughters. Undoubtedly, the trust was to provide a secure fund for the care, support and maintenance of the mother and her two children in a fixed amount until the remarriage of the mother. Upon her remarriage the mother's interest would cease and payments were to be made to her in behalf of the daughters for a reasonable sum "as shall be needed for their care, support, maintenance and education." The education of the children was stated to include "higher education and special training, if that be reasonably possible."
*638In re Tuthill's Will, 1956, 247 Minn. 122, 76 N.W.2d 499, sheds light and a precedent for our determination. The Minnesota court had before it a will that authorized trustees to use such portion of the income "as is necessary for the reasonable and proper care" of testator's son. Necessary there and need here are synonymous. After stating the basic rule of construction is the intention of the testator of a will (or the parties to a trust), Justice Knutson for the court wrote the intention was "that only so much of the property of the trust * * be used as was necessary to furnish proper care, support, and maintenance for Eugene over and above that which he was able to furnish for himself." The principle laid down was the trust was not the primary fund but the secondary fund for the support; that it was not "necessary" or "needed" if other sources were available which legally could supply the funds for the care and support. Here the funds in the trust are not "needed" until the father is unable to perform his legal duty of support.
The trust was insurance against the hazards of death of Mr. Carlson or his insolvency or inability to make any of the payments. During the time the mother had custody Mr. Carlson would have no control over the expenditures of the fixed amount or reasonable amount paid out for the beneficiaries' support except for the reasonable limitation on the trustee and court approval. It seems that while not provided for specifically, the basis or intent and perhaps the motivating force of the setting up of the trust was, that while the mother or some person other than Mr. Carlson had custody of the two girls, the trust was to be used for their care and support without calling upon him to provide it as required by statute unless the trust became depleted by the payments, illness or other misfortune; then, of course, the duty for care and support of the minor children, always present, would become enforcible. Having -custody and control of the children by the Nebraska district court order and the general guardianship he now has control over these expenditures as their father and custodian and the benefits of their custody and society. Therefore, he should be held to be subject to the requirement of our statute that he provide for their care and support. This was the construction Carlson, himself, placed *639on the trust, its background and creation by his 1961 affidavit hereafter mentioned.
Zealously watching the fund's disbursements by objecting to allowances for musical instruction and dental care on July 6, 1961, Mr. Carlson stated in his filed affidavit under oath he was "willing to take both the girls * * * and bring them up and will not ask anything from the trust fund, but will provide them * * * with everything they need if (his former wife) will give them up." In 1966 when he has their custody he desires payment for their care which will reduce or deplete the trust and may deny them the college education he was solicitous about in 1961. '
In my opinion liability of the father for support of minors and the consequent use of assets or property of minors falls into two categories. They are: (1) Where the agreement specifically states it is for the purpose of providing for the care and support of the minor in lieu of the parents' legal duty (so far as it may do so by law or the funds in the trust may cover), the trust is the primary fund to be first resorted to — the trust here does not so provide. Except for an unusual situation of a paltry trust fund and a very wealthy parent his financial condition may'be of no concern. (2) Where the minor is owner of the property in his or her own right, the parents' liability is primary and the minor's property is liable only in the event, and to the amount, the parent is unable to provide for the support. The availability of the minor's property is secondary. This court has so held in In re Guardianship of Severtson, 70 S.D. 85, 14 N.W.2d 886.
Where the agreement does not clearly state the fund is for the purpose of providing the care and support of the minor in lieu of the parents' legal duty, it falls into the second category, and the ever present statutory duty of the parent to support remains the primary liability and the fund is secondary and the principles of the Severtson opinion apply. This result conforms to the intention of the trust agreement here that, not having custody of the minors or right to determine the amount to be spent for the support, then the fund provided for it; not having contemplated he would obtain their custody and the right to *640determine and control this expense, the trust was silent in this event and the fund became subject to use only if the father showed inability to provide their support. Mr. Carlson recognized this in his petition, where he endeavored to come within the compass of the Severtson opinion, by stating he had "need of the funds provided by said trust fund." Paragraph III, S.R. 18. The trial court found otherwise. I would therefore reverse.