(dissenting).
I would straight out reverse and remand to the trial court for the purpose of:
1. Removing Smith as trustee because of severe, not mere, hostility between Smith and Luhrs.
2. Replacing Smith as trustee with a court appointed, neutral, objective trustee who has no conflict of interest in the use of Luhrs’ property.
3. Determining whether a court appointed guardian should be named for Luhrs, and, whether all of her property should be placed in guardianship for her use, subject to court approval.
The factual reasons and authorities for the above are set forth in the majority opinion. They clearly establish numerous grounds for removing Smith as trustee,1 even though most of the authority cited by the majority only involve challenges by beneficiaries against trustees. None involve situations like this where the grantor, who is a co-trustee and the major beneficiary, is making the challenge. In other words, this case involves more than the “mere displeasure of a beneficiary.”
The one case cited by the majority that involved hostilities between co-trustees, In re Guardianship of Brown, 436 N.E.2d 877 (Ind.Ct.App.1982), concluded that the hostility between two related trustees warranted their removal. The court supported its decision by quoting from Bogert, Trusts and Trustees:
[W]here there are several trustees and the relations between them are such that they cannot co-operate in the affairs of the trust, all or one of them may be removed.
Brown, supra at 886 (emphasis omitted) (quoting Bogert, Trusts and Trustees *653§ 527 at 91-2 (2d rev. ed. 1978)).2 Moreover, a court need not wait to remove a trustee until after misconduct has occurred. Wolosoff, supra.
Although the trust may be able to continue to function or exist without the removal of Smith, can such limited functioning be considered “proper trust administration?” Since the trustees have complete discretion regarding the distribution of principal, can the trust be properly administered if the trustees are so antagonistic? Furthermore, can it be considered proper administration for a non-grantor trustee to prevent the grantor trustee from revoking the trust when a revocation clause was specifically included in the trust? 3
If things are as bad as presented, Luhrs needs a guardian and her property needs a guardianship. No one should be forced to co-exist in the living hell that the trial court sanctioned here.
. E.g., Wolosoff v. CSI Liquidating Trust, 205 N.J.Super. 349, 500 A.2d 1076, 1083 (1985) (Removal is warranted when the hostility has "developed to the point that the confidence of the beneficiaries [has] been destroyed and that the trustee [can] no longer work in harmony with them"); Copley v. Copley, 126 Cal.App.3d 248, 178 Cal.Rptr. 842 (1981) (Inevitable future conflict can justify an order of removal).
. Bogert explains that it is immaterial who is responsible for the antagonism.
. Restatement (Second) of Trusts § 107(a) comment b (1959) provides that one ground for removal of a trustee is an unreasonable failure to cooperate with a co-trustee. It is unreasonable for Smith to prevent Luhrs from disposing of her property as she desires. Luhrs may have wanted to end the tug-of-war between her relatives, but there is no evidence she desired to irrevocably dispose of her estate when she created the trust. Yet, such a result is exactly what the trial court has imposed.