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Show PAGE TEN MONDAY, SEPTEMBER 16, 1974 INTERMOUNTAIN COMMERCIAL RECORD In The State Supreme Court of the trust agreement provides that assets of the estate may be purchased "at their fair value" and. that "ascertainment of air value shall be solely within the discretion of the trustees." The court committed no error in adopting the value placed upon the stock by the trustees and the Paragraph Trustees may freely act under all or any of the powers by this agreement given to them in all matters concerning the trusts herein created, after forming his judgment based upon all the circumstances of any particular situation as to the wisest and best course to pursue in the interest of (p) The 10 CP. A. Testimony was given and adduced by plaintiff to the effect that he and Doris were not on good terms, that she had in fact disinherited him. It is his contention that Doris and George could so manipulate the affairs of the corporations to prevent the declaration of dividends, thus depriving him of any income from the proposed transaction. This is mere conjecture. If Doris and George should so act in bad faith, David would have redress to the courts for appropriate relief. the trusts and the beneficiaries hereunder, without the necessity of obtaining the consent or permission of any person interested therein, or the consent or approval of any court, and notwithstand-in- g that they may also be acting individually or as trustees of other trusts, or as agents for other persons or corporations interested in the same matters, or may be interested in connection with d, the same matters as stockholders, directors, or otherwise, however, that they shall exercise such powers at all times in a fiduciary capacity primarily in the interest of the beneficiaries Affirmed. Costs to respondents. pro-vide- Ml WE CONCUR: hereunder. F. Henri Henriod, Justice A. H. Ellett, Justice The powers herein granted to the Trustees may be exercised in whole or in part, from time to time, and shall be deemed to be supplementary to and not exclusive of the general powers of trustees pursuant to law, and shall include all powers necessary to carry the same into effect. Emphasis added. J. Allan Crockett, Justice R. L. Tuckett, Justice 90 C. J.S. , Trusts, Sec. 325. We are of the opinion that it was. Even the parol evidence rule would probably permit such testimony. 54 Am. Jur. , Trusts, Sec. 614. 1. 2. From the foregoing it is apparent that the settlor vested the trustees with broad discretionary powers. David contends, in effect, that these powers are statutorily unauthorised or strictly limited. He cites in support thereof Section U. C. A. 1953, sometimes referred to as the "prudent man standard," which provides: 33-2-- 1, 33-2-- --- September 10, 1974 Allan E. Mecham, Clerk Plaintiff initiated this action to recover for the personal injuries and property damage that she sustained in a vehicular collision with defendant. The matter was tried before the court and plaintiff was awarded judgment; defendant appeals therefrom. The accident occurred in Salt Lake City at the intersection of West Temple and North Temple Streets, during the rainy evening hours of September 27, 1972. Plaintiff, whose automobile was facing in a westerly direction on North Temple, proceeded into the intersection to make a left turn onto West Temple. She yielded to oncoming traffic until the traffic signal turned to red, 'at which time she commenced her left turn. She had observed defendant's car approaching the intersection at a distance of approximately five car lengths as she commenced her turn. At the distance of two car lengths, plaintiff realized that defendant was going to proceed through the red signal light, plaintiff applied her brakes and the collision occurred. i witness, Calvin A. Warren, testified that he had first observed defendant, operating his vehicle in an erratic manner, several blocks prior to the collision and had taken down the license number. He observed the defendant weaving in and out of the traffic lanes and traveling at a speed of 1 5 to 20 miles per hour in excess of the flow of traffic. The witness testified that it was raining, and the flow of traffic was approximately 30 m.p.h. According to the witness, defendant's car was approximately 100 yards from the intersection when the light turned red; it appeared to him that defendant accelerated his car, and the vehicles collided. He did not observe any action on the part of defendant to avoid the collision, i. e. , the vehicle did not appear to slow down and no brake lights were apparent. The witness estimated defendant's speed at 45 to 50 m.p.h. The witness testified that defendant appeared to be intoxicated. A Paramountcy of provisions of will, agreement, court order, or other instrumentTerms defined. Nothing contained in this act shall be construed as authorizing any departure from, or variation of, the express terms or limitations set forth in any will, agreement, court order or other instrument creating or defining the fiduciary's duties and powers, but the term "legal investment" or "authorized investment" or words of similar import, as used in any such instrument, shall be taken to mean any investment which is hereof. Emphasis added. permitted by the terms of 33-2-- FILED CALLISTER, Chief Justice: However, the statutory section immediately following, modifies the "prudent man standard" by providing: - v. In . ed No. 13498 Plaintiff and Respondent, Defendant and Appellant. acquiring, investing, reinvesting, exchanging, retaining, selling and managing property for the benefit of another, an executor, administrator, guardian, trustee, or other fiduciary shall exercise the judgment and care under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. Within the limitations of the foregoing standard, a fiduciary is authorized to acquire and retain every kind of property real, personal or mixed, and every kind of investment specifically including but not by way of limitation, bonds, debentures, and other corporate obligations, and stocks, preferred or common, which men of prudence, discretion and intelligence acquire or retain for their own account, and within the limitations of the foregoing standard, a fiduciary may retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase, property properly acquired. Alice Ellefsen, William Dibblee Roberts, Judgment and care to be exercised by fiduciaries. 1. of so-call- M 2. 33-2- -1 Subsequently, a police officer administered a Breathalyzer test to defendant, which indicated a reading of .27 per cent alcohol. The officer, heretofore mentioned. based upon the test and his observations of defendant, concluded that defendreal estate which is income producing. After Fred's demise his estate was subject ant was intoxicated and not capable of safely a motor vehicle at the to inheritance taxes and was without enough cash or liquid assets to satisfy the taxes. time of the accident. The trial court took operating judicial notice of Section To help alleviate the situation Doris advanced approximately $142,000 to the estate U. C. A. 1953, as amended 1967, wherein it is presumed that a person is under for which she received, in return, shares of stock of the corporations. It is now the the influence of liquor, if there were at the time 0. 08 per cent or intention of the trustees to use funds from the trust, in exchange for shares of stock more by weight intoxicating of alcohol in the person's blood, held by the estate, to satisfy the inheritance taxes remaining due. Plaintiff testified that defendant came to her vehicle and apologized, The trial court dismissed the complaint finding, among other facts, he that Btaggered as he walked, smelled of alcohol, and was not speaking that the proposed purchase of assets from the estate was authorized by paraclearly. He admitted to her that he had known that the light was red and that graph 10 of the trust agreement. With this finding we agree. The terms of he had attempted to run it. said paragraph are clear, unambiguous and confer upon the trustees considerable discretion. The powers so conferred are much broader than Section Plaintiff's dentures were broken, her face was lacerated, and she felt 1, U. C. A. 1953, might confer, but would appear to be statutorily authorextreme pain in her jaw, neck, shoulder and back. She was transported to 2, ized by Section U.C.A. 1953. the hospital by ambulance, where a plastic surgeon sutured her facial lacerHer pain persisted and several days later she ations, and she was Furthermore, it is a generally accepted principle of law that the terms to the a for returned nerve block and plastic collar. In May 1973, hospital of the trust, unless illegal or against public policy, govern over such statutes was plaintiff hospitalized andplaced in cervical traction for treatment of as the "prudent man" statute of this State with regard to the investment of 1 nerve root damage. At the time of trial, she was still taking pain medication. trust funds. Paragraph 10 of the trust agreement specifically authorizes the The oral injuries she sustained compelled her to eat only liquids until after trustees to purchase assets of the estate. Thanksgiving, and her dentures no longer fit properly, so her digestion has been impaired.. Plaintiff objected to the testimony of Fred's insurance advisor to the effect that one of the main purposes in purchasing the life insurance policies Plaintiff's vehicle, which she valued at $600, was destroyed. Plaintiff, and creation of the trust by Fred was to enable the estate to pay inheritance a trained commercial artist, can no longer do this type of work because the bendtaxes without the necessity of liquidating the corporations. Plaintiff's objection to this testimony was that it was hearsay. The court permitted the testiing required to use a drawing board produces severe pain. Plaintiff has continued to experience pain and numbness in her arm, neck and back. mony subject to a motion to strike which was not made. Regardless of the as to its admissibility2 the trial court could have reasonably found question Based on the foregoing, the trial court found that defendant was intoxicated as it did from the terms of the instrument itself. and was driving in a negligent and careless manner and with wilful and wanton disPlaintiff complains as to the value placed upon the stock to be purchasregard for the safety of others, that his conduct was the sole proximate cause of the ed. It is his contention that the value should be discounted because the stock accident, and that as a direct and proximate result of the accident, plaintiff of the corporations is closely held, which would impair its market value. sustained damages to her automobile in the sum of $600, medical expenses in the sum of $1 , 200, and general pain and discomforture in the sum of $10, 000. The A certified public accountant who had done the trial court concluded as a matter of law that plaintiff had been injured by the sole accounting for the three for as to value the the testified of negligence and wilful misconduct of defendant, and that plaintiff had sustained many years corporations assets. He did not take into consideration the claimed discount. He calculated values based damages and should be accordingly awarded judgment. on acquisition costs or book value, capitalized earnings, calculation of taxes on 20 of fair market value, and the appraisal by the county On appeal, defendant contends that the trial court erred in appraisers. The finding that he values arrived at coincided with those used when Doris made the advancement operated his vehicle in a wilful and wanton disregard for the safety of others. 1 He urges that the wilfulness or wantonness of his actions was never of $142,000 to the estate. placed in Fred's estate consisted for the most part of stock in the corporations These corporations (three in all) own improved commercial 33-2-- 33-2-- X-ray- ed. . I (Cont'd. anPagtU) |