Hence, a complete determination, as against appellant, of the question of the sole eligibility of either of the two named defendants making such claim cannot be had without the presence of appellant and, under the statute, in such event the court should have caused appellant to be joined as a party. In Husted v. Sweeney (1943), 113 Ind. App. 418, 48 N.E.2d 1004, a case involving beneficiaries, the extent of whose participation in the trust funds depended upon the discretion of the trustee, it was held that such beneficiaries were proper parties to a complaint for the construction of the trust item of the will, because "their rights and interests could or would be affected by the court's decision." It was held in Wilson v. Wilson (1888), 145 Mass. 490, 14 N.E. 521, that a person to whom income of a trust fund was payable only at the discretion of the trustee was "beneficially interested in the trust" and could intervene by way of a petition seeking the discharge of the trustee, and in that case the trustee was discharged as the result of such intervention.
The Court must uphold Bank One's diversification decision unless it constituted an abuse of discretion. Robison v. Elston Bank Trust Co. (1943), Ind. App., 113 Ind. App. 633, 48 N.E.2d 181, 187 (in banc), reh'g denied (1943), 113 Ind. App. 633, 49 N.E.2d 348; Husted v. Sweeney (1943), Ind. App., 113 Ind. App. 418, 48 N.E.2d 1004, 1008; Restatement (Second) of Trusts 187 (1959): 10 Bogert, Trusts and Trustees 560 at 201-04 (1988). (R. 1170).
Herman first contends that the trial court erred in ordering him as co-trustee of the Main Trust to pay Albert and Woll Enterprises, Inc. for services rendered in operating the Main Trust's oil interests. He argues that the trial court, sitting as a probate court, lacked sufficient subject matter jurisdiction to enforce a claim against the Main Trust asserted by a party not a party to the cause of action. Herman relies primarily on IND. CODE 30-4-6-1 (placing jurisdiction over trusts with the probate courts); IND. CODE 33-5-43-4 (describing the jurisdiction of Vanderburgh Superior Court); Wedmore v. State (1954), 233 Ind. 545, 122 N.E.2d 1; Fidelity and Casualty Co. of New York v. State ex rel. Anderson (1933), 98 Ind. App. 485, 184 N.E. 916 (holding that a probate court's jurisdiction is limited to that expressly conferred or which is necessarily implied from those expressly conferred); and Husted v. Sweeney (1943), 113 Ind. App. 418, 48 N.E.2d 1004 (holding that creditors of a trust beneficiary were prohibited from intervening in an action involving a dispute between the trustee and a beneficiary concerning distribution of the trust corpus). Herman's contention that the trial court's payment order is the settlement of a third party claim is inappropriate. First of all, Herman made Albert a party to the action by naming him as a respondent in the Petition for Order Directing Establishment of Separate Trust Estates; Albert was no interloper. Second, Pearl's Petition for Rule to Show Cause was in part an attempt by Pearl to compel Herman to fulfill his duties as co-trustee, i.e. to sign trust account checks in order that properly incurred trust administration debts could be paid.
Based on the foregoing authorities, we hold that appellant should have been allowed to intervene in the present lawsuit as a matter of law. We reject the argument of appellee Parramore based on Husted v. Sweeney (1943), 113 Ind. App. 418, 48 N.E.2d 1004, which is distinguishable from the instant case. We further point out that the trial court committed reversible error in overruling appellant's petition to intervene without a hearing thereon.