Summary
In Papiernik, the settlor ("husband") created an inter vivos trust which, upon his death, required the trustee to "establish two separate trust estates to be designated as 'Trust A' and 'Trust B.'" Id. at 338.
Summary of this case from Collins v. FlanneryOpinion
No. 88-367
Submitted March 14, 1989 —
Decided September 27, 1989.
Trusts — Inter vivos trusts — Reservation of income to surviving spouse for life with unlimited testamentary power of appointment with remainder to grantor's children creates vested interest in remainderman subject to defeasance by exercise of power of appointment — Standing of remainderman holding vested interest in trust to modify administrative provisions of trust agreement — Court of equity may permit deviation from terms of trust instrument when circumstances arise which would defeat the purpose of the trust — Person appointed trust advisor to inter vivos trust may be removed, when — Authority of trust advisor.
O.Jur 3d Trusts §§ 310, 337, 509.
1. An inter vivos trust which, on the death of the grantor, allocates substantially all the trust assets to a marital deduction trust with the entire income therefrom payable to the surviving spouse, and which grants an unlimited testamentary power of appointment to the surviving spouse with the remainder over to the children of the grantor, creates in the remainderman a vested interest subject to defeasance by the exercise of the power of appointment. ( First Natl. Bank of Cincinnati v. Tenney, 165 Ohio St. 513, 60 O.O. 481, 138 N.E.2d 15, paragraph two of the syllabus, approved and followed.)
2. A remainderman holding a vested interest in a trust which is subject to defeasance by the exercise of a testamentary power of appointment has standing to maintain an action to modify the administrative provisions of the trust agreement.
3. Upon the occurrence of circumstances unknown to the grantor and not anticipated by him, a court of equity may permit deviation from the terms of a trust instrument with caution and only to the extent necessary to prevent the defeat or substantial impairment of the purpose of the trust.
4. When a person is appointed as trust advisor in an inter vivos trust agreement but acts irrationally, irresponsibly, and unsuitably in relation to the trust, a court of equity has the power to remove that person from the position of trust advisor.
5. A trust advisor has only the authority given by the terms of the trust instrument and cannot exceed that authority by reason of also being the sole income beneficiary of the trust with a testamentary power of appointment over all trust assets.
APPEAL from the Court of Appeals for Trumbull County, No 3819.
The appellants, Ted Papiernik, Andrew Papiernik and Alex Papiernik, the three sons of Joseph A. Papiernik, deceased, filed an action in the Court of Common Pleas of Trumbull County against their mother, Elizabeth Papiernik ("Elizabeth"), their sister Diana Papiernik, Bank One of Eastern Ohio as trustee of their father's trust, and Ronald B. Cohen, an advisor to the trustee of their father's trust. Elizabeth is the only appellee, the other defendants having elected not to appeal the judgment of the trial court.
On April 24, 1968, Joseph A. Papiernik ("grantor") entered into an inter vivos trust agreement with the Union Savings and Trust Company of Warren, Ohio, n.k.a. Bank One of Eastern Ohio, designated as trustee.
The trust document provided that the grantor was to receive all income from the trust during his lifetime together with so much of the corpus as he requested or, in the event of his incapacity, so much of the corpus as the trustee deemed advisable.
Upon the death of the grantor, if his wife survived him, the trust instrument required the trustee to establish two separate trust estates to be designated as "Trust A" and "Trust B." Trust A was to be funded with sufficient assests to provide the grantor's estate with the maximum allowable marital deduction for federal estate tax purposes. Trust B was to be funded with any remaining assets available in the trust estate after the funding of Trust A.
Trust A was established for the benefit of grantor's surviving spouse, Elizabeth. She was to receive all income from Trust A during her lifetime. In addition, Elizabeth received, under the provisions of Trust A, a noncumulative right to withdraw five thousand dollars from the trust corpus each year. The trustee was also authorized to pay over additional amounts of corpus from Trust A as the trustee deemed necessary or proper for her care, comfort, maintenance and support. The trust also provided that on the death of Elizabeth, any assets remaining in Trust A must be distributed by the trustee to such persons and in such shares as Elizabeth, by her last will and testament or codicil thereto, appointed by specific reference to the trust. The trust document specifically stated that the grantor's spouse was to have an unlimited testamentary power of appointment in respect of Trust A. In the absence of an effective exercise of the testamentary power of appointment, the assets remaining in Trust A on the death of Elizabeth would be transferred over to and become a part of Trust B.
The appellants are not beneficiaries of Trust A. There is no possibility that the appellants will receive any income or distribution of corpus from Trust A so long as Elizabeth lives.
The trustee was instructed to hold Trust B for the benefit of Elizabeth and the children of the grantor, making such distributions of income and corpus from Trust B to or for the benefit of Elizabeth or any of the children of the grantor as the trustee found to be necessary or proper.
In June 1972, the grantor amended his trust agreement to establish trust advisors to the trustee, with Ronald B. Cohen, the grantor's certified public accountant, and Elizabeth being designated to fill the newly created positions.
The positions of trust advisor were created primarily to approve trust asset transactions proposed by the trustee. Without the approval of the trust advisors, the trustee could not sell, lease, exchange or reinvest assets of the trust. The trust advisors had no other responsibilities to the trustee. They could not require the trustee to sell specific trust assets nor could they require the trustee to purchase specific assets as an investment. The trust advisors were not authorized to vote shares of stock held by the trust or to exercise any dominion and control over any trust asset.
The trust advisors were also given a joint power to remove any trustee of the trust and to appoint a different trustee of their choice provided that the grantor or a beneficiary of the trust could not be made trustee. Furthermore, the trust advisors were each given the power and the duty to appoint a successor advisor if one advisor became incompetent, died, or failed to act.
Although Joseph Papiernik lived until May 5, 1984, no amendment to his trust was made to take advantage of the provisions of the Economic Recovery Tax Act ("ERTA") of 1982. As a result, all or substantially all of the assets in the estate of Joseph Papiernik, including one hundred twenty-six common shares of U.S. Extrusion Tool Die Co. ("Extrusion") out of a total of one hundred fifty shares issued and outstanding, were allocated to Trust A under the maximum marital deduction language of the trust.
After the death of her husband, Elizabeth was appointed executrix of his estate. In addition to this responsibility, the funding of her husband's trust with assets from his estate activated her position as trust advisor since the trust had previously been funded with life insurance policies as the only assets. The way in which Elizabeth responded to these new responsibilities created substantial problems in the administration of her husband's estate, in the operation of the inter vivos trust and in the management of Extrusion, the family business.
With respect to the administration of her husband's estate, the trust officer for Bank One of Eastern Ohio testified that Elizabeth called the trust department three or four times each week to discuss the administration of the estate, even though Bank One was not an executor and had no responsibility for the administration of the estate. As the time approached to close the estate, Elizabeth called the trustee concerning the distribution of estate assets to the trust. She wanted the stocks transferred into her name, even though the will provided for the remainder of the estate property to be poured over into the trust. Elizabeth came to the trust department and presented a friend to the trust officer as the new trust advisor, even though Ronald Cohen had not resigned as trust advisor. In this meeting, the trust officer discussed with Elizabeth the urgent need to hold a meeting of the shareholders of Extrusion to elect new officers and reorganize the board of directors following the death of her husband. The meeting was agreed to, but the next day Elizabeth called to cancel the meeting and to forbid the trustee to call a shareholder meeting. It was at this time that the trustee determined that the refusal to hold a shareholder meeting and the inability of the trust advisors to agree on their instructions to the trustee created an untenable situation which necessitated the resignation of the trustee.
The record also discloses that on October 9, 1985, the attorneys for the Papiernik Estate filed a motion to withdraw as counsel for the estate, citing the lack of cooperation of Elizabeth as the reason. In response to this motion, the probate judge filed an entry whereby the estate counsel agreed to complete the administration of the estate on the conditions that Elizabeth be represented by individual counsel; that all contact be through her counsel; that the work necessary to complete the administration be accomplished through her individual counsel; and that Elizabeth have no direct contact, by telephone, in writing or in person, with the attorneys for the estate.
With respect to the family business, Cohen, a certified public accountant, testified that he had known Joseph Papiernik since 1958 when he was asked to set up an accounting system for a new corporation called U.S. Extrusion Tool Die Company, the predecessor of U.S. Extrusion Steel Corp. At the time of the death of Joseph Papiernik, this corporation had grown to the point that, before compensation to principals, the annual profits were approximately one million dollars. After the death of Joseph Papiernik, friction developed between Elizabeth and Henry Kinast, the business partner of Joseph Papiernik and a principal shareholder in the corporation. By November of that year, Elizabeth had so disrupted corporate affairs that the Papiernik family and the Kinast family agreed to split the corporation to permit the Kinasts to take their share of the corporate assets and establish a business in which they would be the sole owners, free from any meddling by Elizabeth.
In addition, Cohen testified that Elizabeth did not understand the corporate concept, that she thought Extrusion was her company and anybody that did not permit her to do as she pleased was interfering with her rights and was out to get her, that she was impossible to work with, and that she usually was not reasonable or rational in her reactions to Cohen's explanations or in her accusations or her statements.
Ted Papiernik, one of Elizabeth's sons, testified concerning the problems that his mother had created by inserting herself into the company business. He testified that the company ordered a new electrical discharge machine which was used in the production of dies, the backbone of the company business. Elizabeth found out about the order, disagreed with the expenditure of funds, and called the manufacturer to cancel the order. On another occasion she found a maintenance man working overtime at the plant and sent him home, with the result that seventy-five percent of the factory was without electricity on the next workday. Elizabeth went to the bank where the company maintained the corporate checking account, closed the account and had all the funds deposited in an account subject to her signature only. Since this action was taken without any notice to the corporate officers, a number of checks drawn on the first account were rejected by the bank when presented for payment. The company also maintained an account at Paine-Webber for the short-term investment of surplus cash. Elizabeth went to the Paine-Webber office and withdrew all cash from this account and deposited it in her personal account.
In their original complaint the appellants sought the modification of their father's trust agreement by removing the provisions which created the position of trust advisor; the removal of Elizabeth as a trust advisor; an injunction to prevent Elizabeth from acting as a trust advisor or from interfering with the trustee of the Papiernik trust; and an order requiring the trustee to continue to act as trustee during the pendency of the action. A supplemental complaint asked for further relief by restraining Elizabeth from interfering with the operation of Extrusion, from contacting Bank One of Eastern Ohio, from demanding the surrender of trust assets from the trustee to herself, from demanding the minute book of Extrusion, and from holding herself out as trust advisor.
The trial court found that Elizabeth had acted irrationally, irresponsibly and unsuitably in relation to the trust; that both Elizabeth and Ronald Cohen should be removed as trust advisors; and that the part of the first amendment to the trust agreement which provides for trust advisors should be deleted from the trust instrument.
The trial court filed a judgment based on these findings that removed Elizabeth and Cohen as trust advisors; that declared null and void the trust provision which created the position of trust advisor; and that appointed a successor trustee to replace Bank One which had submitted its resignation as trustee prior to the filing of the original complaint. In addition, a motion to dismiss the complaint on the ground that plaintiffs were not proper parties to maintain this action was overruled in the judgment entry.
Elizabeth appealed to the court of appeals asserting three errors: that the trial court erred in modifying the terms of the trust of Joseph Papiernik; that the court should not permit a deviation from the terms of Joseph Papiernik's trust; and that plaintiffs are not proper parties to bring an action to modify the entire trust agreement.
The court of appeals found merit in all three assignments of error and reversed the judgment of the trial court, finding that the plaintiffs in the trial court had no interest or property right in the assets of Trust A and therefore lacked standing to maintain an action to modify trust provisions which apply to Trust A. The court also held that the modification of the trust provisions to eliminate the position of trust advisor was inappropriate.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Comstock, Springer Wilson, David C. Comstock and Edward N. Sobnosky, for appellants.
George A. Chuparkoff and Stephen J. Chuparkoff, for appellee.
This case presents three issues for our consideration: first, whether the remainder beneficiaries of a trust have sufficient interest in the trust to create standing to maintain an action to modify the trust when the income beneficiary has an absolute power of appointment over all assets in the trust; second, whether it is error for a court of equity to strike from the trust instrument provisions creating the position of trust advisor when continued use of trust advisors will not defeat or substantially impair the accomplishment of the trust purpose; and, third, whether it is proper for a court of equity to remove a trust advisor from office for misconduct when the trust advisor is also the sole income beneficiary of the trust and the possessor of an absolute power of appointment over all assets in the trust. We answer all three queries in the affirmative for the reasons which follow and accordingly reverse the court of appeals on the issue of standing to sue and on the issue of removal of a trust advisor from office, and reinstate the order of the trial court on both issues. We affirm the court of appeals on the issue of striking the trust provisions which create the office of trust advisor and order those provisions restored to the trust instrument.
The first issue to be resolved is that of the standing of the Papiernik brothers to bring this action for the removal of their mother, Elizabeth, as a trust advisor, and for the modification of the trust instrument by deleting the provisions which created that position.
The appellee contends that appellants must have an interest in both Trust A and Trust B if they are to maintain an action to delete the trust provisions which create the position of trust advisor since those provisions apply to both Trust A and Trust B. Appellee argues that appellants must survive Elizabeth and she must refrain from fully exercising her unlimited testamentary power of appointment before appellants will have any interest in the assets of Trust A. Therefore, appellants have a contingent remainder subject to a condition precedent which is not sufficient to give them standing to sue. Appellants contend that their interest in the assets of Trust A is a vested remainder subject to defeasance by the exercise of the power of appointment.
Before we can decide the matter of standing, we must determine the nature of the appellants' interest in Trust A.
2 Restatement of the Law, Property, Future Interests (1936) 561, Section 157, Comment u, defines a "remainder subject to a condition precedent" as follows:
" Remainder subject to a condition precedent — Uncertainties. When a limitation creates a remainder and it is not possible to point to any person and to say such person would take, if all interests including a prior right to a present interest should now end, this remainder is subject to a condition precedent. This uncertainty distinguishes this type of remainder from those vested subject to open (Comment l) and from those vested subject to complete defeasance (Comment p)."
A "vested remainder subject to a complete defeasance" is defined at 554-555, Section 157, Comment p, as follows:
" Remainders vested subject to complete defeasance — Certainty of taker but uncertainty as to present interest being acquired or retained. When a remainder is vested subject to complete defeasance it is possible to point to a person and to say that such person would take, if all interests including a prior right to a present interest should now end. In this regard this type of remainder is like a remainder vested subject to open (compare Comment l). But the person thus clearly identified has no certainty of retaining such present interest as he may acquire and commonly has no certainty of ever acquiring any present interest in the affected thing. These uncertainties can be caused by any one of several factors. The remainder may be so created as to be capable of expiration before the interests including a prior right to a present interest end (see Illustration 11). The remainder may be created so as to terminate in accordance with the terms of a special or executory limitation (see Illustrations 12 and 13), or by an exercise of a power had by some person (see Illustration 14)." (Emphasis added.)
1 Simes Smith, The Law of Future Interests (2 Ed. 1956) 95, Section 113, states:
"Vested Remainders Subject to Complete Defeasance.
"As indicated above, remainders may be classed as `vested' even though they are subject to complete defeasance. The limitations which will result in the creation of this kind of remainder are very numerous, and it would be futile to try to enumerate all of them. It is, however, possible to indicate the common types of limitations which create a remainder subject to complete defeasance, and such is the purpose of this section.
"Before doing so, however, it is important to notice the content of the term `defeasance.' It is a characteristic of all vested remainders that the holder thereof be a person in being who would be entitled to take possession of the land if all prior interests were to terminate. But, there are many occasions in which neither that person who would be entitled to take if the preceding interests were to end nor his successors will ever enjoy possession. If such a possibility exists, then the remainder is subject to complete defeasance. Similarly, there are many occasions in which the person who becomes entitled to possession and enjoyment or his successors may not be certain of continuing that possession through the termination of the estate. Here, too, the remainder is `subject to complete defeasance.' It is thus clear that the term `defeasance' includes both the process by which an interest expires by its own terms before it ever becomes possessory, and the process by which an interest is cut short by reason of some executory limitation or by the exercise of some power."
In First Natl. Bank of Cincinnati v. Tenney (1956), 165 Ohio St. 513, 60 O.O. 481, 138 N.E.2d 15, the court stated in paragraph two of the syllabus:
"An inter vivos trust which reserves to the trustor the income for life and an absolute power to revoke during his lifetime, with a remainder over at his death, creates in the remainderman a vested interest subject to defeasance by the exercise of the power to revoke."
In this case we have a life tenant with an absolute power to appoint rather than a trustor with an absolute power to revoke. The exercise of either power would defease the remainder interest. We can find no difference between the position of the remaindermen in First Natl. Bank of Cincinnati v. Tenney, supra, and the position of the remaindermen in this case. We hold that an inter vivos trust which, on the death of the grantor, allocates substantially all the trust assets to a marital deduction trust with the entire income therefrom payable to the surviving spouse, and which grants an unlimited testamentary power of appointment to the surviving spouse with the remainder over to the children of the grantor, creates in the remaindermen a vested interest subject to defeasance by the exercise of the power of appointment.
Thus, the interest of the remaindermen in the Papiernik Trust is a vested interest subject to complete defeasance.
In State, ex rel. Dallman, v. Court of Common Pleas (1973), 35 Ohio St.2d 176, 178, 64 O.O. 2d 103, 104, 298 N.E.2d 515, 516, this court held:
"It is elementary that every action shall be prosecuted in the name of the real party in interest (Civ. R. 17[A], and paragraph one of the syllabus in Cleveland Paint Color Co. v. Bauer Manufacturing Co., 155 Ohio St. 17), and that one having no right or interest to protect ordinarily may not invoke the jurisdiction of a court. * * *" See, also, Shealy v. Campbell (1985), 20 Ohio St.3d 23, 20 OBR 210, 485 N.E.2d 701.
We hold that a remainderman holding a vested interest in a trust which is subject to defeasance by the exercise of a testamentary power of appointment has standing to maintain an action to modify the administrative provisions of the trust agreement.
Appellants have argued that they have standing to maintain this action whether their interest is vested or contingent. Having found the interest to be vested, it is not necessary to decide if a contingent remainder would be sufficient to create standing to maintain the action.
Next, we will consider the issue of the modification (deviation) of the trust agreement by deleting the provisions which create the position of trust advisor.
"One of the important functions of the court of equity is to assist in enforcement and administration of trusts, and hence to make such orders and decrees as will secure the carrying out of the creators' expressed intent, as to the dispositive provisions, as to the directions, as to the methods to be used, and as to the details of administration to be followed by the trustee." 6 Bogert, Trust Trustees (2 Ed. Rev. 1980) 226, Section 561. See, also, Sandy v. Mouhot (1982), 1 Ohio St.3d 143, 1 OBR 178, 438 N.E.2d 117; Tootle v. Tootle (1986), 22 Ohio St.3d 244, 22 OBR 420, 490 N.E.2d 878. Thus, we must determine the grantor's expressed intent as it can be gathered from the trust document. With the grantor's intent in mind, we are then in a position to apply the doctrine of deviation to determine whether a modification of the trust provisions is justified.
We believe the grantor intended that this trust should provide financial support to Elizabeth during her lifetime and then pass the remaining assets, and especially the shares of Extrusion, to the children of the grantor. There is nothing in the record of this case which indicates that the continued use of trust advisors will defeat or even substantially impair this purpose. On the contrary, we conclude that trust advisors will enhance the accomplishment of the trust purpose by protecting against an unwanted sale of the closely held corporate shares by the trustee.
Shares in a closely held corporation represent a difficult investment for a trustee. The performance of the corporate management is difficult to measure, but the trustee has the ultimate responsibility for corporate management since, as shareholder, the trustee elects the corporate board of directors which in turn elects officers to manage the company. Furthermore, the shares are not listed on any exchange so their value is difficult to determine. Only under the most unusual circumstances can a few shares of the investment be liquidated to meet a need for cash, but a listed security can be partially or completely liquidated in a matter of days. In addition, the return on closely held shares may be less than would be available in other investments because corporate earnings are sometimes used to finance corporate expansion rather than pay dividends. Also, proper diversification of the trust portfolio is difficult to achieve if the closely held shares represent a large part of the corpus of the trust.
All these problems associated with closely held shares represent inducements for a trustee to liquidate such an investment to increase income, liquidity and diversification. It is the responsibility of the trust advisors in this plan to see that such a sale does not take place on the sole decision of a corporate trustee.
The grantor's intent is clear. He added trust advisors to his estate plan to protect his corporation. It was his intention that the shares of Extrusion eventually pass to his children, some of whom are presently active in the business and shareholders of the corporation.
Deviation from the administrative provisions of a trust will be permitted by a court of equity, if owing to circumstances not known to the grantor and not anticipated by him, compliance would defeat or substantially impair the accomplishment of the purpose of the trust. See 54 Ohio Jurisprudence 2d (1962) 58, Trusts, Section 167. See, also, Harter Holding Co. v. Perkins (1942), 69 Ohio App. 203, 24 O.O. 15, 43 N.E.2d 365, and Craft v. Shroyer (1947), 81 Ohio App. 253, 49 Ohio Law Abs. 385, 37 O.O. 77, 74 N.E.2d 589. Furthermore, the doctrine of deviation is to be applied with caution and only to the extent necessary to accomplish the purpose of the grantor. In this case, deviation by eliminating the position of trust advisor could serve to defeat the intent of the grantor by exposing the family corporation to an untimely sale. In addition, the deviation granted goes well beyond that which is necessary to correct the circumstances which threaten the purpose of the trust. We therefore hold that it was error to delete the trust advisor provisions from the trust.
Finally we will consider the issue of the removal of both Elizabeth and Cohen from the positions of trust advisor.
The record in this case clearly establishes that Elizabeth completely misunderstood the office of trust advisor and acted irrationally, irresponsibly and unsuitably in relation to the trust.
According to the trust instrument, the trust advisors had two responsibilities which they were to exercise jointly:
1. To approve all sales, leases, exchange or investments of assets proposed by the trustee; and
2. To remove any trustee and appoint a successor trustee.
The third responsibility was intended to be exercised by a single trust advisor to replace an advisor who became incompetent, died or failed to act.
Instead of confining herself to the given duties, Elizabeth inserted herself into the management of the trust and of Extrusion to the extent that the continued existence of the trust and the corporation were threatened.
First, we observe that it is necessary, when considering this case, to keep in mind that Elizabeth has a dual relationship with the trust. She is both a beneficiary and a trust advisor. This does not mean, however, that these two positions can be combined to give Elizabeth more authority or additional rights which she would not otherwise have. A trust advisor has only the authority given by the terms of the trust instrument and cannot exceed that authority by reason of also being the sole income beneficiary of the trust with a testamentary power of appointment over all trust assets.
Elizabeth contends that the grantor of the trust expressed his clear intention that she should have control over the assets in Trust A. We disagree. If the grantor wanted his wife to have control over the assets in Trust A, there are other arrangements which he could have used. A gift of the assets to Elizabeth without the intervention of a trustee would have given her the control which she claims. Appointment of Elizabeth as trustee would also have given her control of the assets in Trust A. However, the grantor did not use either of these arrangements. He made his wife beneficiary of Trust A, which gives her no voice in the control or management of trust assets. He also made his wife a trust advisor, but the only responsibility of this position with respect to the assets of the trust is to approve any sale, lease, exchange or investment of trust assets before the trustee may make the transaction.
Elizabeth had a duty to limit her activities with the trust and the assets held by the trust to those duties assigned to a trust advisor.
The appellants argue that the role of trust advisor is akin to that of a fiduciary, but we believe it is unnecessary to make this determination to decide this case. The conduct of Elizabeth was unsuitable whether or not she was a fiduciary by virtue of her position of trust advisor. In fact, almost all her misconduct had nothing to do with her position of trust advisor.
When a person is appointed as trust advisor in an inter vivos trust agreement but acts irrationally, irresponsibly, and unsuitably in relation to the trust, a court of equity has the power to remove that person from the position of trust advisor.
It is apparent that the trial court properly exercised its equity jurisdiction in removing Elizabeth as a trust advisor.
However, there is nothing in the record which justifies the removal of Cohen from office. The only evidence concerning his performance in office consisted of testimony that Elizabeth, in her capacity as trust advisor, mailed a letter to Cohen concerning the appointment of a successor trustee. Cohen received the letter on December 26. When he had not responded by December 29, Elizabeth declared the office held by Cohen vacant due to his failure to act and made the appointment of a successor trustee as the sole remaining trust advisor. Three days is not sufficient time to respond to a nomination as important as that of successor trustee. Cohen has not been guilty of a failure to act based on the evidence in this record nor has he been guilty of any misconduct which would justify his removal from office.
The judgment of the court of appeals is hereby reversed on the issue of standing to sue and on the issue of removal of Elizabeth as a trust advisor. The judgment of the court of appeals is hereby affirmed on the issue of deviation from the trust provisions.
We remand this cause to the trial court with instructions to restore the trust provisions which create the positions of trust advisor and to restore Cohen to his position of trust advisor with an appropriate period of time to permit Cohen to fill the vacancy created by the removal of Elizabeth as trust advisor.
Judgment affirmed in part, reversed in part and cause remanded.
SWEENEY, Acting C.J., HOLMES, DOUGLAS, WRIGHT, H. BROWN and RESNICK, JJ., concur.
JOHN R. EVANS, J., of the Third Appellate District, sitting for MOYER, C.J.