PETERSON et al.
PETERSON et al. (two cases).
P. J., COOMER and MARKLE, JJ.
case comes to us for a second time on appeal and the other
was previously appealed to the Supreme Court of Georgia. See
Peterson v. Peterson, 344 Ga.App. XXVIII (Case No.
A17A2025) (February 27, 2018) (unpublished)
("Peterson I"); Peterson v.
Peterson, 303 Ga. 211 (811 S.E.2d 309) (2018)
("Peterson II"). Brothers and co-trustees
Charles Alexander Peterson ("Alex") and Hugh David
Peterson ("David") (collectively,
"Appellants") appeal from the trial court's
order granting summary judgment in favor of their mother and
co-trustee Mary Jeannette Willcoxon Peterson
("Mary") and brother and co-trustee Cleveland
Calhoun Peterson ("Calhoun") (collectively,
"Appellees"). Appellants challenge the trial
court's finding that Mary did not owe Appellants a
fiduciary duty when she exercised her power of appointment
under two trusts and ordered Appellants to execute all
conveyance documents submitted to them. Appellants further
contend the trial court erred in concluding that Mary could
act exclusively in her capacity as a beneficiary of both
trusts in exercising her appointment power to convey trust
assets. Lastly, Appellants contend the trial court erred in
granting summary judgment in favor of Appellees on
Appellants' claims for breach of fiduciary duty with
respect to both trusts. For the reasons that follow, we
judgment is proper when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of
law. A de novo standard of review applies to an appeal from a
grant of summary judgment, and we view the evidence, and all
reasonable conclusions and inferences drawn from it, in the
light most favorable to the non-movant."
BBL-McCarthy, LLC v. Baldwin Paving Co., 285 Ga.App.
494, 494-495 (646 S.E.2d 682) (2007) (citations omitted).
Peterson I and Peterson II, the relevant
background was described as follows:
Hugh Peterson died testate in 1994 and was survived by his
wife, Mary, and their three sons Alex, David, and Calhoun.
Mr. Peterson's will, which was probated in 1995, created
two testamentary trusts: a marital trust for the primary
benefit of Mary, and a residual "by-pass" trust for
the benefit of Mary and the couple's three sons. Mary and
her three sons were each designated co-executors of the will
and co-trustees of both the marital and by-pass trusts. Item
5 of Mr. Peterson's will created a marital trust for
Mary, while Item 6 created a bypass trust for Mary and their
three sons. The relevant portion of the will creating the
terms of the by-pass trust reads as follows:
Trustees shall hold and manage the property in this trust and
. . . may encroach on such part of the principle thereof as
the Trustees may deem necessary to provide for the support in
reasonable comfort of my wife and to provide for the proper
support and education of my descendants[.] To the extent
practicable, however, I request the Trustees in making
encroachment for the benefit of my wife to encroach first on
any trust created for my wife . . . before encroaching on
this trust for my wife[.]
My primary desire is that my wife be supported in reasonable
comfort during her lifetime and that my children be supported
in reasonable comfort during their lives; my secondary desire
is that the principal of this trust be preserved as well as
possible consonant with the consummation of my primary
[My wife] shall have no power to appoint [trust] property to
herself, to her estate, to her creditors, or to the creditors
of her estate.
the terms of the will, all decisions made by the majority of
the executors or trustees would control, provided that said
majority included Mary. Other than some specific personal
property, all the real and personal property of the estate
was to be placed in either the marital trust or the bypass
trust, and the bypass trust was designed to have a value of
$600, 000. Item 5 of the will provides that all of the income
from the marital trust goes to Mary for her life and that
Mary has "the power at any time and from time to time
... to direct the Trustees to turn over any part of the
property in this trust to my said wife or to or among such of
my descendants or spouses of such descendants." At
Mary's death, in the event that she has not disposed of
the marital trust property in her will or by her power of
appointment, it will become part of the bypass trust if it is
still in existence. If it is not, the property is to be
divided between Alex, David, and Calhoun or their
after the will was probated, a dispute arose between the
co-executors and co-trustees over the administration of the
estate and the by-pass trust, pitting Mary and Calhoun
against Alex and David. Alex and David filed petitions for
accounting and damages for breach of duties as executors and
trustees against Mary and Calhoun, and sought the removal of
Mary and Calhoun as executors and trustees in probate court.
Mary and Calhoun each moved for summary judgment on all
claims and the superior court granted their motions. Alex and
David appealed those rulings.
first appearance of this case before this Court, we reversed
the trial court's grant of summary judgment to Calhoun in
an unpublished opinion. See Peterson I. One month
later, the Georgia Supreme Court in Peterson II
reversed the trial court's grant of summary judgment to
Mary for similar reasons. Both cases held that material
issues of fact remained with respect to Appellees'
failure to fully fund the trusts at issue in the case and
whether Appellees wasted assets. See Peterson I, at
page 7-8, 10; Peterson II, 303 Ga. at 215-217.