Citizens and Southern Nat. Bank v. Orkin, 24073
| Decision Date | 18 May 1967 |
| Docket Number | No. 24073,24073 |
| Citation | 156 S.E.2d 86,223 Ga. 385 |
| Parties | CITIZENS & SOUTHERN NATIONAL BANK et al., Trustees, v. Otto ORKIN, by Next Friend et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Where trustees are granted discretion as to the amount of money needed to support the beneficiary of a trust such discretion is not absolute but may be controlled by a court of equity when the trustees' actions are infected with fraud or bad faith, misbehavior or misconduct, arbitrariness, abuse of authority or perversion of the trust, oppression of the beneficiary or want of ordinary skill or judgment.
2. Included in the definition of necessaries to be furnished a wife under Code § 53-510, for which a husband may be bound, is an attorney to represent her when she is charged with a crime.
(a) A trust responsible for the 'care, support, comfort and welfare' of a married man is also responsible for necessaries furnished his wife.
(b) Where an equitable petition is filed to require trustees to properly administer their trust as to a class of beneficiaries, in the present case Otto Orkin and his wife, attorneys fees may be awarded the plaintiff out of the trust estate.
The record in the case sub judice shows a series of legal skirmishes between the parties over a period of years which culminated in the present petition being filed by Mrs. Otto (Ann) Orkin individually and as next friend and guardian of the person of her husband Otto Orkin. She sought to require the payment from a trust held by defendant trustees of a sufficient amount of money to properly provide for the support of Otto Orkin and herself, and specifically to require the payment from such trust for alleged expenses previously incurred. The trial court hearing the case without the intervention of a jury wrote an opinion consisting of some eleven pages and found that the trustees had abused and failed to properly exercise the discretion given them in the trust instrument. At the conclusion of such opinion the trial court ordered: fees incurred by Mrs. Orkin for the services rendered to her in the defense of the criminal cases and for services rendered to her and Mr. Orkin in this case are a legal liability of Mr. Orkin and should therefore be paid by the trustees out of the trust funds. It should not be necessary for this court to pass on the amount of same. Such an item is similar to a drug store bill which the trustees should pay without an order of the court. Of course, the trustees can question the reasonableness of the bill but the trustees, Mrs. Orkin and their counsel should endeavor in good faith to arrive at a reasonable sum for those services. There is no evidence that the trustees have questioned the reasonableness or allowance of other attorneys' fees. (5) Under the evidence presently before me it is not possible for me to make any determination as to (a) the alleged accumulated debts or (b) the application of Mrs. Orkin for back payments 'to catch up. " The defendant trustees expressly enumerate as error each of the above holdings of the trial court.
George G. Finch, Ben Kohler, Jr., I. T. Cohen, Powell, Goldstein, Frazer & Murphy, Robert R. Harlin, James N. Frazer, B. D. Murphy, Atlanta, for appellants.
Adair, Goldthwaite, Stanford, Daniel & Horn, T. Emory Daniel, Albert M. Horn, Atlanta, for appellees.
1. The first contention of the trustees is that since the trust agreement granted to the trustees a discretion as to the amount of the money to be used for the support of Otto Orkin the trial court was without authority to interfere with such discretion. In support of this contention they cite Turner v. Trust Company of Georgia, 214 Ga. 339, 346, 105 S.E.2d 22, 27, where it was held: Incidentally the Turner case was heard by the same trial judge who decided the case sub judice and he properly distinguished cases where trustees are bona fide exercising a discretion and cases where the trustees' discretion is not bona fide being exercised as was shown in Cates v. Cates, 217 Ga. 626, 632, 124 S.E.2d 375, 380, where it was held: 54 Am.Jur. 228, Trusts, § 287. 'The courts will not ordinarily interpose to restrain the execution of a power, except where abuse of discretion, bad faith, or fraud is shown, or where the power is attempted to be exercised in a manner different from that authorized by the donor.' 72 C.J.S. Powers § 34, p. 430.'
The evidence presented by verified petition and answer as well as affidavits submitted on the hearing and stipulated as the evidence, amply supported the findings of the trial court quoted in part as follows:
fees incurred in defense of her against criminal charges as well as attorneys' fees, in protecting her rights and determining her liabilities.
'The chaotic course of supporting Mr. Orkin, including proper maintenance and support for Mrs. Orkin makes it very difficult for the court to discern a pattern of conduct which results in a stable program of compliance with the duties imposed upon the trustees.
'It appears that Mr. Orkin is in the area of 80 years of age, that while he has been adjudicated to be incompetent to manage his affairs, he still has the capacity and desire to enjoy some of the pleasures and comforts of life to which a man who, by his own efforts, has acquired substantial wealth is justly entitled. He also requires medical and professional care. In addition he has the legal obligation to support his present wife adequately and commensurately with his means and standard of living. Financial provisions for the uninterrupted continuity of these matters is the clear duty of the Trustees under the trust agreement.
'Item 3 of that document provides that 'in the event of donor's (Mr. Orkin's) incapacity for any reason, the trustees shall be authorized to pay and/or use so much of the net income as they deem necessary for his care, support, comfort and welfare.'
'In Item 4(b) of the trust instrument it is specified...
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