In re the Testamentary Trust Under the Will of Stuchell , 104 Or. App. 332 ( 1990 )

EDMONDS, J.,

dissenting.

I disagree with the majority’s conclusion that there is no common law authority for a court to approve an agreement modifying this trust. Restatement (Second) Trusts § 167(1) (1959), states:

“The court will direct or permit the trustee to deviate from a term of the trust if owing to circumstances not known to the settlor and not anticipated by him compliance would defeat or substantially impair the accomplishment of the purposes of the trust; and in such case, if necessary to carry out the purposes of the trust, the court may direct or permit the trustee to do acts which are not authorized or are forbidden by the terms of the trust.¹

See also Bogart and Bogart, The Law of Trusts & Trustees 230, § 561 (rev 2d ed 1983).

Under Section 167(1), two elements must be satisfied before the court may permit a deviation from the express terms of a trust: First, there must be circumstances unforseen or unforeseeable by the settlor; second, the settlor’s main objective would be frustrated if strict compliance with the trust were required. See, e.g., In re Traung’s Estate, 207 Cal App 2d 818, 24 Cal Rptr 872 (1962); Esmieu v. Schrag, 92 Wash 2d 535, 598 P2d 1366 (1979). When a deviation concerns the dispositive terms of a trust, the courts impose an additional requirement on the party proposing the deviation: He must show that all the beneficiaries are competent and that all of them join in requesting the change. Bogart, Trusts 519, § 146 (6th ed 1987); see, e.g., Springfield Safe Deposit & Trust Co. v. Stoop, 326 Mass 363, 95 NE2d 161 (1950).

Petitioner has proposed a modification that would deviate from the dispositive terms of the trust. She should have the opportunity to litigate whether the conditions of Section 167(1) can be satisfied. Because the trial court concluded that it had no authority to grant the petition, she was denied that opportunity.

I also disagree with the majority’s conclusion that there is no statutory authority for the trial court to approve an agreement modifying a trust, and I agree with Judge Riggs’s reading of ORS 128.135(2)(c). There is additional support for his opinion. ORS 128.021 provides:

“ORS 128.003 to 128.051 and 128.065 do not affect the power of a court of competent jurisdiction for cause shown and upon petition of the trustee or affected beneficiary and upon appropriate notice to the affected parties to relieve a trustee from any restrictions on the power of the trustee that would otherwise be placed upon the trustee by the trust or by ORS 128.003 to 128.051 and 128.065.”

That provision was enacted by SB 27, Or Laws 1977, ch 614, which adopted, with modifications, the Uniform Trustees’ Powers Act. It also repealed several provisions, including former ORS 128.040, which provided:

“Nothing in ORS 128.020 to 128.050 restricts the power of a court of proper jurisdiction to permit a fiduciary to deviate from the terms of any will, agreement or other instrument relating to the acquisition, investment, reinvestment, exchange, retention, sale or management of fiduciary property.”

The legislative history reveals that former ORS 128.040 is the precursor of ORS 128.021. See Minutes, Senate Committee on the Judiciary 2 (Mar. 31,1977 — statement and written testimony of Rees C. Johnson, attorney, member of the Oregon State Bar Committee on Uniform State Laws). Because former ORS 121.040 authorized a trial court to permit a trustee to deviate from the terms of a trust and ORS 128.021 was intended to perpetuate that authority, the authority to modify a trust is necessarily implicated. The only remaining issue is whether petitioner has shown the cause required by ORS 128.021.1 would reverse and remand.²

1 As noted by the majority, this rule does not apply “merely because such deviation would be more advantageous to the beneficiaries than a compliance with such direction.” Restatement (Second) Trusts, § 167(1), comment b.

2 Because it is not addressed by petitioner, I would not decide whether the Rule Against Perpetuities may also have some bearing on this case.