Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super Ct. No. 113224.
Lambden, J.
Stephen Meyer (Stephen) is a contingent remainder beneficiary of the Edie Westphal Herold (the Trustor or Decedent) Testamentary Trust (the Trust). He petitioned the trial court to require Herbert G. Meyer (Herbert or the Trustee), the sole surviving trustee of the Trust, to permit him to review the Trust records, to provide him with a written report pursuant to Probate Code section 16061, and to inform him ahead of time of all material nonroutine transactions affecting the Trust estate. The court concluded that the language in the Trust made it clear that that Trustor intended to free the Trustee from any duty under the Probate Code or common law to permit Stephen to review the records of one of the Trust’s principal assets, but it required the Trustee to let Stephen review the records of the other assets of the Trust. The court also denied Stephen’s request to require the Trustee to provide a report or to disclose in advance any nonroutine transaction involving assets of the Trust. Stephen appeals and contends that the language of the Trust did not release the Trustee from his duty to give him a written report or to allow him access to all of the Trust’s assets. He asserts that the lower court’s ruling is contrary to public policy and various provisions in the Probate Code. Additionally, he claims that under the common law the Trustee must provide him with advance notice of any nonroutine transaction involving the Trust. We are not persuaded by Stephen’s arguments and affirm the judgment.
All further unspecified code sections refer to the Probate Code.
BACKGROUND
The Trustor died on February 6, 1949; her will and codicil were admitted to probate on February 25, 1949. Herold Westphal (Herold), George H. Meyer (George), and Herbert were appointed executors of the will. The will consists of 11 articles governing the administration of the probate estate and the distribution of its assets. The Trust was established by “Article Sixth” of the will and six probate decrees, four of which ordered that certain assets of the Decedent’s estate be distributed to the trustees of the Trust, to be held in accordance with the terms of the Trust as specified in the decrees. Each decree specifies the same Trust terms, and the terms of the Trust are identical to the provisions set forth in article sixth of the will, except as modified by the codicil to the will.
Article sixth of the will names Herold, George, and Herbert the trustees of the Trust. The Trust’s principal asset is real property located near Gonzales, California, and is referred to as the ranch. In 1949, the ranch appraisal was almost $1 million. Stephen is Herbert’s son and a contingent remainder beneficiary of the Trust.
All of the decrees of distribution contain the Trust provision, paragraph (f), regarding the trustees’ duty to account to remainder beneficiaries. Paragraph (f) reads as follows: “Said trustees shall not at any time be required to prepare, sign or deliver to the remaindermen hereinafter named, or any of them, or to their personal representatives, as required by the provisions of Section 1065 of the Probate Code of the State of California [repealed by Stats. 1988, c. 1199, § 55.5, operative July 1, 1989], or any other provision of law, any inventory or inventories of any property which may come into their possession under the provisions of this ARTICLE SIXTH, or to account to said remaindermen or any of them, or to their personal representatives, for proceeds of said ranch of any kind or nature whatsoever which may accrue to said trustees and/or come into their possession, and said trustees shall not be liable to the remaindermen or any of them, or to their personal representatives, for damages or otherwise on account of any actual or alleged waste or injury to the inheritance committed or suffered by said trustees, or on account of the failure of said trustees properly to manage said ranch or to keep the buildings and fences on said ranch in repair, and no one or more of said remaindermen shall have the right to enjoin any waste or act of injury to her inheritance actually or allegedly threatened to be committed or suffered by said trustees, or to deprive said trustees of the right to use, possess, and enjoy said ranch or the rents, issues, profits, or proceeds therefrom for and during the entire period of this trust on account of any actual or alleged waste or act of injury to the inheritance, or to require said trustees to give security for the benefit of such remaindermen or any of them. The term ‘waste’ as used in this sub-paragraph (f) shall mean waste of every kind or nature, including ordinary waste, voluntary waste, permissive waste and equitable waste.”
The Trust named Herold, George, Aimee Westphal Meyer, and Herbert as income beneficiaries of the Trust. The Trust is to continue in full force and effect until the death of the last of these original income beneficiaries; Herbert, who is now in his 80s, is the last surviving original income beneficiary. Each income beneficiary was entitled pursuant to the terms of the Trust to distribute his or her share of the Trust income by will in the event his or her death occurred prior to the Trust’s termination. Richard Herold Westphal, Jr. (Richard), the son of Herold, inherited the right to income from the Trust from his father and, other than Herbert, is the only other current income beneficiary.
Upon termination of the Trust at Herbert’s death, the Trust’s assets will be distributed in equal shares to the “issue of the body” of Herold and Herbert, and to the descendants of such deceased issue by right of representation who are surviving at the time of termination. Currently, the contingent remaindermen are Richard and his descendants, Stephen, and Stephen’s siblings and their descendants.
On January 30, 2006, Stephen filed a safe harbor petition pursuant to Probate Code section 21320, seeking a ruling that his petition for information would not constitute a will contest. The superior court denied his petition, and Stephen appealed. In Meyer v. Meyer (2008) 162 Cal.App.4th 983, this Division held that the trial court erred in concluding that the no contest clause of the will applied and reversed the order denying Stephen’s safe harbor motion. (Id. at p. 989.) This court expressly stated, “Nothing herein should be construed as determining whether the Petition for Information is inconsistent with paragraph (f) or other provisions of the Trust set forth in the decrees of distribution, an issue we have not considered.” (Id. at p. 998, fn. 9.)
On May 8, 2009, Stephen filed a Petition for Order Instructing Trustee and Compelling Trustee to Provide Information to Beneficiary (petition for information) with the probate court. The petition for information sought an order instructing Herbert, as trustee: “a. That his contention that he may withhold all financial information about the trust from Stephen H. Meyer is erroneous, and he is under a duty to keep Stephen H. Meyer reasonably informed of the Trust and its administration in accordance with section 16060; [¶] b. That he is under a duty to grant Stephen H. Meyer, and his accountants, attorneys, and other representatives, full and complete inspection of all books and records with relation to the Trust...; [¶] c. That he is under a duty to provide Stephen H. Meyer, on reasonable request, a report of information in accordance with section 16061; and [¶] d. That he is under a duty to inform Stephen H. Meyer of all material facts in connection with a nonroutine transaction which significantly affects the trust estate prior to the transaction taking place, including such nonroutine transactions as the transfer, sale, substantial encumbrance and/or large scale development or capital improvement of Trust real estate.”
On August 11, 2009, the probate court held a hearing on Stephen’s petition for information. The court filed its order on September 28, 2009, partially granting and partially denying Stephen’s petition. The court ruled Stephen had standing to bring the petition. It also pointed out that under section 16060, “[t]he trustee has a duty to keep the beneficiaries of the trust reasonably informed of the trust and its administration[.]” The court set forth the language of paragraph (f) of the Trust, which stated that the trustees “shall not be required to provide any inventory of property which may come into their possession, shall not be required to account to the remainder beneficiaries for proceeds related to the ranch and shall not be liable for any damages related to actions taken with respect to the ranch.”
The trial court’s order instructed Herbert, as trustee of the Trust: “a. that he has a duty to keep Stephen H. Meyer reasonably informed of the Trust and its administration under... [section] 16060; [¶] b. that he must allow Stephen H. Meyer to review the Trust documents relating to Trust assets other than the ranch; [¶] c. that he does not have to provide Stephen H. Meyer a written report under... [section] 16061; [¶] [and] d. that he does not have to inform Stephen H. Meyer in advance of nonroutine transactions.” The court denied Stephen’s request for sanctions.
Stephen filed a timely notice of appeal. Subsequently, he requested that we take judicial notice of three recorded deeds, which we granted.
DISCUSSION
I. Standard of Review and Legal Principles Governing Interpretation of a Trust
In construing trust instruments, as in the construction and interpretation of all documents, the duty of the court is to first ascertain and then, if possible, give effect to the intent of the maker. (Estate of Gump (1940) 16 Cal.2d 535, 548.) It is axiomatic that we look to the instrument creating the trust to determine the trust’s nature, extent and object; those aspects should be ascertained from the whole of the trust instrument, not just separate parts of it. (Moxley v. Title Ins. & Trust Co. (1946) 27 Cal.2d 457, 466.) The interpretation of a trust instrument presents a question of law unless the interpretation turns on the credibility of or a conflict in extrinsic evidence. (Burch v. George (1994) 7 Cal.4th 246, 254, abrogation on a different point as stated in Estate of Rossi (2006) 138 Cal.App.4th 1325, 1339-1340.) Here, no extrinsic evidence was offered regarding the interpretation of the Trust and, therefore, the interpretation of the Trust is a question of law. (Estate of Norris (1947) 78 Cal.App.2d 152, 159.)
The proper construction of provisions of the Probate Code is also subject to our independent review on appeal. (Estate of Rossi, supra, 138 Cal.App.4th at p. 1336.) When interpreting a statute, “we must discover the intent of the Legislature to give effect to its purpose, being careful to give the statute’s words their plain, commonsense meaning. [Citation.] If the language of the statute is not ambiguous, the plain meaning controls and resort to extrinsic sources to determine the Legislature’s intent is unnecessary.” (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 919.) “We construe the words of a statute in context, and harmonize the various parts of an enactment by considering the provision at issue in the context of the statutory framework as a whole.” (Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, 487.)
II. Stephen’s Request to Review the Ranch’s Records
A. Introduction
Section 16060 requires trustees to keep beneficiaries “reasonably informed of the trust and its administration.” The trial court ruled that this duty might be limited or waived by section 16000. This statute provides: “On acceptance of the trust, the trustee has a duty to administer the trust according to the trust instrument and, except to the extent the trust instrument provides otherwise, according to this division.” (§ 16000; see generally Prob. Code, Div. 9, Trust Law, § 1500 et seq.)
The trial court concluded that paragraph (f) of the Trust, which states that the trustees shall not be required to provide any inventory of property that may come into their possession, shall not be required to account to the remainder beneficiaries for proceeds related to the ranch, and shall not be liable for any damages related to actions taken with respect to the ranch, limited Herbert’s duty under section 16060 as to the ranch. The court concluded that Herbert did not need to permit Stephen to review the ranch’s records, but had to let him review the records of the other assets of the Trust.
Stephen contends that the court incorrectly interpreted paragraph (f). He also claims that the trustee’s duty under section 16060 cannot be waived by the Trust because such a result is contrary to public policy, the Probate Code, and common law.
Our review of the lower court’s ruling requires a three-step analysis. First, we must interpret the Testator’s intent from the plain language of the Trust. Second, if we conclude that the Trust relieves the Trustee from an obligation to permit Stephen to review the ranch’s records, we consider whether section 16000, which states that the language in the trust instrument may modify the trustee’s duties, applies to the duty specified under section 16060. Finally, if we conclude that section 16000 applies to section 16060, we consider whether interpreting the statutes in this manner contravenes public policy.
B. Paragraph (f)
1. The Actual Language
As set forth earlier, paragraph (f) of the Trust provides the following: “Said trustees shall not at any time be required to prepare, sign or deliver to the remaindermen hereinafter named, or any of them, or to their personal representatives, as required by the provisions of Section 1065 of the Probate Code of the State of California [repealed by Stats. 1988, ch. 1199, § 55.5, operative July 1, 1989], or any other provision of law, any inventory or inventories of any property which may come into their possession under the provisions of this ARTICLE SIXTH, or to account to said remaindermen or any of them, or to their personal representatives, for proceeds of said ranch of any kind or nature whatsoever which may accrue to said trustees and/or come into their possession, and said trustees shall not be liable to the remaindermen or any of them, or to their personal representatives, for damages or otherwise on account of any actual or alleged waste or injury to the inheritance committed or suffered by said trustees, or on account of the failure of said trustees properly to manage said ranch or to keep the buildings and fences on said ranch in repair, and no one or more of said remaindermen shall have the right to enjoin any waste or act of injury to her inheritance actually or allegedly threatened to be committed or suffered by said trustees, or to deprive said trustees of the right to use, possess, and enjoy said ranch or the rents, issues, profits, or proceeds therefrom for and during the entire period of this trust on account of any actual or alleged waste or act of injury to the inheritance, or to require said trustees to give security for the benefit of such remaindermen or any of them. The term ‘waste’ as used in this sub-paragraph (f) shall mean waste of every kind or nature, including ordinary waste, voluntary waste, permissive waste and equitable waste.”
2. The Effect of the Exculpatory Clause on Construction
A portion of the first sentence in paragraph (f) of the Trust sets forth the duties of the trustees. The latter part of this sentence declares that the trustee shall not be liable for damages or waste. This portion of the sentence is an exculpatory clause because it attempts to exempt the trustees from liability for damages or waste to the remaindermen.
Stephen contends that paragraph (f) is an exculpatory clause and must be strictly construed. The rule is that the language of an exculpatory clause must be clear, unambiguous, and explicit. (Saenz v. Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 765; Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 518.) Thus, the exculpatory clause in a trust instrument is strictly construed. (Estate of Collins (1977) 72 Cal.App.3d 663, 673.)
In his opening brief, Stephen ignores that there is a distinction between the exculpatory provision at the end of the first sentence in paragraph (f), and the first portion of the sentence that limits the trustees’ duties. The portion of the sentence in paragraph (f) that limits the trustees’ duties is strictly constructed only as it relates to limiting liability, but not as to defining the trustee’s duties. In Stephen’s reply brief, he cites to comment d of section 82 in the Restatement Third of Trusts, which specifies that the trustee’s duty to disclose “is subject to modification only by clear language in the terms of the trust....” As discussed below, even if we apply a strict construction to the entire paragraph, the trial court correctly interpreted the Trustee’s duties under the Trust.
3. Interpreting Paragraph (f)
a. The Clear Meaning of Paragraph (f)
Paragraph (f) of the Trust clearly, unambiguously, and explicitly states that the trustees “shall not” be required to provide any inventory of property that may come into their possession and shall not be required to account to remaindermen for proceeds of the ranch that may come into the trustees’ possession. Herbert does not need to have to give Stephen access to any of the records regarding the ranch related to inventory or related to any justification or explanation for proceeds of the ranch that may come into Herbert’s possession.
In his petition for information, Stephen requested the court to require Herbert to permit his accountants, attorneys, and him access to “all books and records” related to the assets of the Trust. The Trust expressly states, however, that Herbert does not have to account to the remainder beneficiaries for proceeds of the ranch or to provide inventory of the ranch. Therefore, under the Trust, Herbert does not have to permit Stephen to see the financial (or inventory) records of the ranch. Accordingly, we agree with the superior court that the plain language of the Trust unambiguously permits Herbert to reject Stephen’s request to review the ranch’s books and records.
b. Stephen’s Interpretation of Paragraph (f)
In arguing that paragraph (f) does not eliminate Herbert’s duty to permit him to inspect the records of the ranch, Stephen separates the first sentence into what he refers to as the “exculpatory clause, ” the “inventory clause, ” and the “accounting clause, ” and then proceeds to interpret these clauses independently. As already noted, a principal rule in construing a trust instrument and ascertaining the intent of the trustor is that the court must look to the “whole of the trust instrument, not just separate parts of it.” (Scharlin v. Superior Court (1992)9 Cal.App.4th 162, 168.) It is therefore improper to examine separately each phrase in the first sentence of paragraph (f) without considering the context and the effect of the other portions of the sentence. Accordingly, when addressing Stephen’s interpretation of paragraph (f), we will consider whether his interpretation of a particular phrase is inconsistent with other phrases in paragraph (f).
With regard to the “exculpatory clause, ” Stephen declares that the words in the exculpatory clause do not specify that the trustees do not have a duty to permit inspection of the Trust records. Stephen insists that the exculpatory clause is rather narrow and applies only to waste or injury, not to a violation of a fiduciary duty of loyalty. He claims that, without the proper information and access to the records, he cannot assess whether the fiduciary obligations have been met.
Stephen never specifies the portion of the sentence that is the exculpatory clause. This is probably because elsewhere in his brief he asserts that strict construction must be applied to the entire paragraph and characterizes the entire paragraph as being an exculpatory clause and subject to strict construction. This argument is inconsistent with his argument later in his brief when he labels only a portion of the paragraph as an exculpatory clause. We agree that only a portion of the paragraph attempts to exempt the trustees from liability, and the exculpatory clause in paragraph (f) is the following: “[T]rustees shall not be liable to the remaindermen or any of them, or to their personal representatives, for damages or otherwise on account of any actual or alleged waste or injury to the inheritance committed or suffered by said trustees, or on account of the failure of said trustees properly to manage said ranch or to keep the buildings and fences on said ranch in repair, and no one or more of said remaindermen shall have the right to enjoin any waste or act of injury to her inheritance actually or allegedly threatened to be committed or suffered by said trustees, or to deprive said trustees of the right to use, possess, and enjoy said ranch or the rents, issues, profits, or proceeds therefrom for and during the entire period of this trust on account of any actual or alleged waste or act of injury to the inheritance, or to require said trustees to give security for the benefit of such remaindermen or any of them.”
Contrary to Stephen’s assertion, the exculpatory clause in paragraph (f) is quite broad. This clause exempts the trustees from any liability for damages for “actual or alleged waste or injury to the inheritance” and paragraph (f) defines waste as “waste of every kind or nature, including ordinary waste, voluntary waste, permissive waste and equitable waste.” This rather broad clause does not contradict the phrase immediately preceding it that states the trustees do not have to account to the remaindermen for the proceeds from the ranch.
This exculpatory clause does not limit the trustees’ liability in an impermissible manner and does not violate section 16461. Section 16461, subdivision (a) provides in relevant part that “the trustee can be relieved of liability for breach of trust by provisions in the trust instrument.” Such a provision cannot “relieve the trustee of liability (1) for breach of trust committed intentionally, with gross negligence, in bad faith, or with reckless indifference to the interest of the beneficiary, or (2) for any profit that the trustee derives from a breach of trust.” (§ 16461, subd. (b).)
Stephen then examines what he refers to as the “inventory” clause in paragraph (f). The “inventory” clause provides that the trustees “shall not at any time be required to prepare, sign or deliver to the remaindermen... as required by” former section 1065, “or any other provision of law, any inventory or inventories of any property....” Stephen points out that the clause refers to former section 1065 and stresses that this statute is irrelevant to the duty of trustees. Stephen asserts that this “inventory” clause simply frees the trustee of an obligation to prepare any inventory and does not preclude the beneficiary from reviewing the trust record that identifies an asset. Additionally, he maintains that “inventory” refers to assets at the beginning of a fiduciary’s tenure and cites to a legal treatise (Bogert, The Law of Trusts and Trustees (rev. 2d ed. 1992) § 597, pp. 472-473) and argues that it provides a legal definition of inventory as being the “record of the status of the trust at its beginning.” (Ibid.) He emphasizes that what came into the Trustees’ possession “under the provisions of the ARTICLE SIXTH” were the initial assets of the Trust. He concludes that the Decedent did not intend to free the trustees from providing a record of all inventory collected after the creation of the Trust.
Former section 1065 states: “Where a specific legacy is for life only, the life tenant must sign and deliver to the remainderman, or, if there is none, to the personal representative, an inventory of the property, expressing that the same is in his custody for life only, and that, on his decease, it is to be delivered to the remainderman.”
Contrary to Stephen’s assertions in his briefs, the legal treatise cited by Stephen does not provide a definition of inventory. Under the section “[i]nventory and appraisal[, ]” the treatise simply explains: “For his own protection every trustee should enter in the trust records a complete list of the items of property received by him as trustee and should value them himself or have them appraised by one or more competent third persons. Only in such manner can he provide the proper foundation for performance of his duty to keep orderly accounts, give information, and furnish a final accounting. If he has no record of the status of the trust at its beginning, it will be exceedingly difficult for him to give a satisfactory formal or informal statement of the results of his stewardship later.” (Bogert, supra, The Law of Trusts and Trustees, § 597, pp. 472-473.) Stephen’s reference to a phrase in this entire section, which does not propose to provide a general or legal definition of “inventory[, ]” is disingenuous.
The plain language of the phrase Stephen refers to as the “inventory clause” is that the trustees shall not “be required to prepare, sign or deliver to the remaindermen” as required by former section 1065 “or any other provision of law, any inventory or inventories of any property which may come into their possession under the provisions of this ARTICLE SIXTH[.]” The clear meaning of these words is that the trustees do not have to prepare or deliver to the remaindermen inventories and, thus, they do not have to prepare or deliver any document setting forth the inventory of the Trust assets for the remaindermen’s inspection. By specifying ARTICLE SIXTH, the Trustee is simply referring to the assets of the Trust. The language makes it evident that the Decedent did not intend inventory to be limited to inventory of the initial trust property or at the beginning of the fiduciary’s tenure. The trustees do not have to deliver any inventories of any property that “may come into” the trustees’ possession. Inventories that come into the trustee’s possession related to the assets set forth in the will undoubtedly include items acquired anytime during the fiduciary’s tenure.
Finally, Stephen claims the “accounting clause” does not eliminate the beneficiary’s right to inspect trust records. Paragraph (f) provides that the trustees shall not be required “to account” to remaindermen “for proceeds” of the ranch that may accrue to the trustee and/or come into their possession. He claims that this provision simply relieves the trustees from having to provide an accounting. He argues that he is not asking for an accounting, but simply wants access to the records of the Trust.
Paragraph (f) does not refer to an accounting, but specifies that the trustees do not have “to account to said remaindermen... for proceeds of said ranch or nature whatsoever which may accrue to said trustees and/or come into their possession....” The word “account” is used as a verb, not a noun. When used as a verb, it means to give an explanation or to provide a report on money received, kept, and spent. (www.Dictionary.com.) In his reply brief, Stephen cites to the Webster’s New Word College Dictionary and states that this dictionary provides three definitions. He acknowledges that one of the definitions is “to explain” and another definition has no applicability to the present case. He, however, insists that the third definition, to furnish a reckoning of money received, “fits our situation to a ‘T.’ ”
Webster’s Dictionary defines the verb “account” when used with “for, ” as it is in the present case, as the following: “to furnish a justifying analysis or explanation, ” “to be the sole or primary factor, ” or “to bring about the capture, death, or destruction of something.” (See www.merriam-webster.com/dictionary/account.) The dictionary does provide the “archaic” definition of account, when used as a noun, as a “reckoning” or “computation.” Thus, Stephen’s strained and deceptive interpretation is entirely without merit.
Accordingly, the trustees do not have to give any explanation or furnish a justifying analysis regarding the proceeds of the ranch. Requiring Herbert to permit Stephen to inspect the Trust documents would compel him to explain or provide a report on the proceeds related to the ranch and would be contrary to the intent of the Trustor.
Accordingly, we reject Stephen’s interpretation of paragraph (f) and conclude that the lower court correctly interpreted this paragraph as relieving Herbert of having any obligation to permit Stephen to review the records of the ranch.
C. Paragraph (f) and the Probate Code
1. Interpreting the Relevant Provisions of the Probate Code
The trial court ruled that Herbert, as the trustee, had the duty to provide information related to the Trust assets under section 16060 except for information related to the ranch. The court determined that this ruling gave effect to the clear intent of the Descendant as set forth in paragraph (f), and under section 16000 the intent of the Testator trumps any duties set forth in the Probate Code.
Stephen contends that to the extent section 16000 indicates that the duty of the trustee may be limited by the trust instrument, this provision is contrary to the duties set forth in sections 16060 through 16064. He claims that sections 16060 through 16064 are more specific provisions than section 16000, and more specific provisions control a general provision (see San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577).
The rule of statutory construction provides that where two statutes are inconsistent, “ ‘a particular or specific provision will take precedence over a conflicting general provision.’ ” (Stone Street Capital, LLC v. California State Lottery Com. (2008) 165 Cal.App.4th 109, 119.) “Exceptions to the general provisions of a statute are to be narrowly construed; only those circumstances that are within the words and reason of the exception may be included.” (Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 921.) At all times, “[o]ur foremost task remains ascertainment of the legislative intent, including consideration of ‘the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.’ [Citation.]” (City of Long Beach v. California Citizens for Neighborhood Empowerment (2003) 111 Cal.App.4th 302, 306.)
The Probate Code imposes numerous obligations on trustees. As already stated, “On acceptance of the trust, the trustee has a duty to administer the trust according to the trust instrument and, except to the extent the trust instrument provides otherwise, according to this division.” (§ 16000; see generally Prob. Code, Div. 9, Trust Law, § 1500 et seq.) Thus, the duties imposed by statute “must give way to directions contained in the governing trust instrument.” (Copley v. Copley (1981) 126 Cal.App.3d 248, 279.)
The trustee’s codified duties toward the beneficiaries include the duty of loyalty, the duty to avoid conflicts of interest, the duty to preserve trust property and make it productive, and the duty to report and account. (See §§ 16000-16014, 16060-16062.) The duty of the trustee under sections 16060 and 16061 is to keep beneficiaries “reasonably informed of the trust and its administration” (§ 16060) and, “[e]xcept as provided in Section 16069, ” to provide “a report of information” (§ 16061). “Except as otherwise provided in this section and in Section 16064, the trustee shall account at least annually, [and] at the termination of the trust....” (§ 16062, subd. (a).) Section 16062, subdivision (e) provides: “Any limitation or waiver in a trust instrument of the obligation to account is against public policy and shall be void as to any sole trustee who is a disqualified person as defined in Section 21350.5.” An account furnished under section 16062 must contain certain information. (§ 16063.)
In the present case, even if we presume for this appeal that section 16000 is the more general provision, we do not agree that this statute is inconsistent with other provisions in the Probate Code. Moreover, Stephen’s interpretation would render section 16000’s language, “except to the extent the trust instrument provides otherwise[, ]” nugatory. “An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in the light of the statutory scheme [citation]; and if a statute is amendable to two alternative interpretations, the one that leads to the more reasonable result will be followed [citation].” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
Section 16060 addresses the trustee’s general duty to keep beneficiaries reasonably informed and is not any more specific than section 16000, which specifies that “the trustee has a duty to administer the trust according to the trust instrument and, except to the extent the trust instrument provides otherwise, according to this division.”
Section 16060 and the other provisions setting forth the trustee’s duties are not inconsistent with section 16000. Rather, when interpreting these provisions as a whole, sections 16060 through 16064 simply set forth the duties of the trustee “except to the extent the trust instrument provides otherwise” (§ 16000). Moreover, the Law Revision Commission Comment to section 16060 includes a reference to section 16000 and states, “See also... [section] 16000 (duties subject to control in trust instrument)....” This reference indicates an intent to have the duties set forth in section 16060 subject to any limitation or waiver provided in the trust instrument pursuant to section 16000.
We therefore reject Stephen’s argument that permitting the Trust under section 16000 to limit the duty specified in section 16060 was error.
2. Interpreting the Relevant Statutes to Give Effect as Much as Possible to the Trustor’s Intent
Applying section 16000 to section 16060 is an interpretation that gives effect to the intent of the trustor. It is well settled that “ ‘ “[t]he paramount rule in the construction of wills, to which all other rules must yield, is that a will is to be construed according to the intention of the testator as expressed therein, and this intention must be given effect as far as possible.” ’ ” (Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 134.) The trustor’s “intent ‘ “ ‘must be given effect as far as possible.’ ” ’ ” (Hearst v. Ganzi (2006) 145 Cal.App.4th 1195, 1212.)
Such a construction is consistent with the reasoning in Hearst v. Ganzi, supra, 145 Cal.App.4th 1195. In Hearst v. Ganzi, the court acknowledged that section 16003 compels trustees to treat classes of beneficiaries impartially, but the court explained that the trustees did not breach their duty of impartiality by maintaining a dividend policy that effectively favored remainder beneficiaries because the will authorized the trustees to treat the income and remainder beneficiaries differently. (Hearst v. Ganzi, supra, at pp. 1210-1211.) The court explained that the provision in the will “depart[s] from the strict statutory duty of impartiality with respect to income production for current income beneficiaries[, ]” but the language in the will eclipsed any statutory duty pursuant to section 16000. (Hearst v. Ganzi, supra, at p. 1211.)
We therefore conclude that the trial court’s applying section 16000 to section 16060 is consistent with and promotes the strong public policy of giving effect as far as possible to the Trustor’s intent.
3. Interpreting Section 16000 In Light of Section 16064
Section 16064 governs waiver of duties under sections 16061 and 16062, and has no application to section 16060. Although Stephen agrees that section 16064 does not apply to the present situation, he maintains that the language of this statute establishes that section 16000 does not apply to section 16060. Stephen contends that section 16064, like section 16000, provides that duties may be waived by the instrument and if the Legislature had wanted to permit the trust instrument to waive the duty set forth under section 16060, it would have made section 16064 applicable to this statute.
The duty of the trustee under sections 16061 is, “[e]xcept as provided in Section 16064, ” to provide “a report of information” (§ 16061). Section 16062, subdivision (a) states, “Except as otherwise provided in this section and in Section 16064, the trustee shall account at least annually, [and] at the termination of the trust....” An account furnished under section 16062 must contain certain information. (§ 16063.)
Section 16064, subdivision (a) provides that the “trustee is not required to account to a beneficiary... [¶] (a) [t]o the extent the trust instrument waives the account, except that no waiver described in subdivision (e) of section 16062 shall be valid or enforceable. Regardless of a waiver of accounting in the trust instrument, upon a showing that it is reasonably likely that a material breach of the trust has occurred, the court may compel the trustee to account.”
Stephen argues that interpreting section 16000 to apply to all provisions would render unnecessary the language in section 16064, subdivision (a), authorizing trust instruments to limit or waive the duties described in sections 16061 and 16062. We do not agree. The fact that two statutes provide similar or complementary information does not violate the principles of statutory construction that “whenever possible, significance must be given to every word in pursuing the legislative purpose, and the court should avoid a construction that makes some words surplusage.” (Agnew v. State Bd. of Equalization (1999) 21 Cal.4th 310, 330, superseded by statute on another issue.) This rule applies to the interpretation of the language within one particular provision. A statute with narrow application, such as section 16064, which applies only to sections 16061 and 16062, can track the language of another statute, such as section 16000, which applies to the entire division. Interpreting the plain language of section 16000 to apply to the entire division does not make any words in section 16064 insignificant.
Section 16064 applies directly only to the trustees’ duties to report information and to provide an account, while section 16000, according to the plain language of the statute, applies to the entire division. Section 16064 simply confirms that a trustee need not provide a report of information or an account to a beneficiary when the trust instrument waives these specific duties and sets forth an exception to following the testator’s intent when a beneficiary submits some evidence that a breach of the trust is likely or has occurred. Section 16060, which requires the trustee to keep beneficiaries “reasonably informed of the trust and its administration, ” does not concern the trustee’s duty to furnish specific types of information and is not covered by section 16064.
4. Interpreting the Statutes to Permit a Beneficiary to Establish a Breach by the Trustee
Stephen contends that a beneficiary needs to be permitted to inspect the records of the assets of the trust to permit the beneficiary to make a showing under section 16064 that the trustee committed a material breach. (See § 16064, subd. (a) [“Regardless of a waiver of accounting in the trust instrument, upon a showing that it is reasonably likely that a material breach of the trust has occurred, the court may compel the trustee to account”].) Additionally, Stephen cites to the following in the Restatement Second of Trusts: “The trustee is under a duty to the beneficiary to give him upon his request at reasonable times complete and accurate information as to the nature and amount of the trust property, and to permit him or a person duly authorized by him to inspect the subject matter of the trust and the accounts and vouchers and other documents relating to the trust.” (Rest.2d Trusts, § 173.) He also quotes a comment to section 173 of the Restatement Second of Trusts, which states as follows: “Although the terms of the trust may regulate the amount of information which the trustee must give and the frequency with which it must be given, the beneficiary is always entitled to such information as is reasonably necessary to enable him to enforce his rights under the trust or to prevent or redress a breach of trust.” (Rest.2d Trusts, § 173, com. (c), p. 378.)
As the above language reflects, the trustee ordinarily has a duty to the beneficiary to provide information and to permit inspection of the record. The comment makes it clear that a trust instrument may limit the trustee’s duties to disclose information, but a beneficiary may still be entitled to this information if “such information” “is reasonably necessary” to enable the beneficiary “to enforce his rights under the trust or to prevent or redress a breach of trust.” (Rest.2d Trusts, § 173, com. (c), p. 378.)
Indeed, the Restatement of Trusts recognizes that the trust instrument may modify the common law duties of the trustee. Section 82 of the Restatement Third of Trusts states the following: “(2) Except... or as permissibly modified by the terms of the trust, a trustee also ordinarily has a duty promptly to respond to the request of any beneficiary for information concerning the trust and its administration, and to permit beneficiaries on a reasonable basis to inspect trust documents, records, and property holdings.” The comment to this subsection declares: “The terms of a trust may alter the amount of information a trustee must give to the beneficiaries under this Section and also the circumstances and frequency with which, and persons to whom, it must be given.” (Rest.3d Trusts, § 82, com. (a)(2), p. 184.)
The Restatement of Trusts observes that the trust instrument may limit or waive the trustee’s duty to provide information to the beneficiary. However, it carves out a limited exception and declares that the beneficiary is entitled to information upon a showing of the trustee’s breach or likely breach of his or her fiduciary duty. As discussed, below, there is no showing in the present case to support application of this narrow exception that the court’s ruling should, as much as possible, implement the testator’s intent.
Accordingly, we conclude that the plain language of the statutes in the Probate Code establish that section 16000 applies to the duty set forth in section 16060, and the Restatement of Trusts does not necessitate a different construction of section 16000.
D. Public Policy
Stephen argues that sections 16060 and 16061 codify a trustee’s common law duty to report to beneficiaries. This common law duty was, according to Stephen, set forth in Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 207-209, Union Trust Co. v. Superior Court (1938) 11 Cal.2d 449, 460-462 and Strauss v. Superior Court (1950) 36 Cal.2d 396, 401-402. He maintains that these cases show that public policy supports the conclusion that the trustee has a duty to report to beneficiaries and this duty cannot be waived.
Both the Probate Code and the case law support the conclusion that trustees have a duty to report to beneficiaries. The question is whether the trust instrument can modify duties of the trustee that are specified in the Probate Code. None of the above three cases cited by Stephen involved a situation where the trust instrument limited the trustee’s duty to provide certain types of information to certain beneficiaries. (See Wells Fargo Bank v. Superior Court, supra, 22 Cal.4th 201, Union Trust Co. v. Superior Court, supra, 11 Cal.2d 449; Strauss v. Superior Court, supra, 36 Cal.2d 396.) Thus, these cases are not helpful to the issue being considered by this appeal.
Not allowing the beneficiary to gain information when the trust instrument limits or waives the trustee’s duties to disclose information would, according to Stephen, violate public policy and he cites Estate of Ferber (1998) 66 Cal.App.4th 244 (Ferber). In Ferber, a beneficiary sought to have the court determine whether several proposed actions, including a petition to remove the executor, would violate the no contest clause in the decedent’s will. (Id. at pp. 248-249.) The appellate court determined that the actions would violate the no contest clause. (Id. at p. 250.) The court in Ferber, balanced two competing public polices. (Id. at pp. 253-255.) The court recognized the value in allowing beneficiaries to bring instances of executor malfeasance to the court’s attention without fear of being penalized for disinheritance. (Id. at pp. 253-254.) “No contest clauses that purport to insulate executors completely from vigilant beneficiaries violate the public policy behind court supervision.” (Id. at p. 253.) However, the court also acknowledged that no contest clauses are “ ‘favored by the public policies of discouraging [unnecessary] litigation and giving effect to the purposes expressed by the testator.’ [Citation.]” (Id. at p. 254.) The trial court concluded that a no contest clause was valid “insofar as it prohibited frivolous objections to the accounting....” (Id. at p. 255.) In the case before it, the appellate court held that enforcement of the no contest clause did not violate public policy because “[n]othing about the claim implies any misfeasance by the executor.” (Ibid.)
Ferber has limited relevance to the present case as it principally concerned an effort to oust a trustee when a no contest clause in the will specifically forbade such an effort, and that is not an issue in this appeal. Ferber is relevant to the extent that it underscores the principle that beneficiaries must be free to raise claims of a trustee’s wrongdoing so that the court may address them. Here, as we explain more fully below, Stephen has made no showing of malfeasance.
Stephen does not cite any case that directly addresses the issue present in this case, but, in addition to Ferber, he relies heavily on Salter v. Lerner (2009) 176 Cal.App.4th 1184, 1188-1189 (Salter). In Salter, the court held that a proposed petition by contingent remainder beneficiaries to acquire information about administration of the trust would not violate the no contest clause. The trust agreement provided that “ ‘any reports or accounts otherwise required by the California Probate Code are hereby waived to the fullest extent of the law.’ ” (Id. at p. 1187.) This provision was construed as a waiver pursuant to section 16064 of the trustee’s duties to provide a written report under section 16061 or an accounting under section 16062. (Salter, supra, at pp. 1187-1188.) The Salter court stated that the request for information did not challenge the waivers of the report and accounting obligations, but simply sought information reasonably necessary for the remainder beneficiaries to be able to enforce their rights under the trust and information required to be disclosed under section 16060. (Salter, at p. 1189.)
In Salter, supra, 176 Cal.App.4th at page 1188, the court noted that “[t]he parties agree that unlike sections 16061 and 16062, the duty imposed under section 16060 is not subject to waiver under section 16064.” This sentence may be interpreted to suggest that the duty under section 16060 could not be waived. However, the court did not consider whether the trust instrument could limit the obligations under section 16060. There was absolutely no discussion or analysis of section 16000 or the extensive case law that stresses the policy of giving effect to the trustor’s intent. Accordingly, we conclude that Salter did not consider the issue before us and, to the extent it suggests that the trust instrument cannot relieve the trustees of their obligations under section 16060, we disagree.
Furthermore, in Salter, supra, 176 Cal.App.4th 1184, the petition alleged that the trustee was “subsidizing his lifestyle through expenditures of income, invasions of principal....” (Id. at p. 1188.) In situations where there is evidence of wrongdoing, the request for reasonable information under section 16060 may include records that seem to be covered by a waiver clause because public policy would mandate the release of such information. Indeed, section 16461, subdivision (b) specifies that the trust instrument cannot “relieve the trustee of liability (1) for breach of trust committed intentionally, with gross negligence, in bad faith, or with reckless indifference to the interest of the beneficiary, or (2) for any profit that the trustee derives from a breach of trust.” (See also § 16064, subd. (a) [“Regardless of a waiver of accounting in the trust instrument, upon a showing that it is reasonably likely that a material breach of the trust has occurred, the court may compel the trustee to account”].)
We agree that the balancing of public policies may make it appropriate in certain circumstances to deviate from the clear intent set forth by the trustor in the trust instrument. A court should have the discretion to require the trustee to give a beneficiary information even when access to such information is contrary to the expressed intent of the trustor when the beneficiary makes a showing that such information is necessary to prevent or remedy a breach of trust. In the present case, Stephen did not allege and did not submit evidence of a breach of a trust. Rather, he simply requested “full and complete inspection of all books and records with relation to the Trust[.]”
In his brief in this court, Stephen argues that he needs to review trust records as they “might explain why the City of Gonzales lists the trustee’s stepson, John Handel, as the owner of eight parcels of a part of the ranch that has been turned into an industrial park.” He claims that this information shows that a reasonable beneficiary would want to inquire about such information. Rather than cite to any evidence in the record supporting this claim, he cites to a web cite for the City of Gonzales. Stephen has never requested judicial notice of this information and has not shown that such evidence was in the record below. Accordingly, we will not consider such evidence.
Stephen did request that we take judicial notice of three recorded deeds, and we granted this request. The first deed submitted was recorded on December 22, 2005, and stated that Herbert transferred “[l]ots 6 through 15 on [a] certain map” to American Cooling, Inc. (ACI), a California Corporation. On the same date, a second deed indicated that ACI transferred three of these lots to Bodega Flats, LLC (Bodega Flats), a California limited liability company. The same time the second deed was filed a third deed was filed and Bodega Flats, memorialized a $1,019,730 loan from ACI to it. It stated that the lien of this deed of trust was inferior and subordinate to the lien executed by ACI for the benefit of Herbert, the Trustee, which was “recorded concurrently herewith.” Stephen argues that these instrument make clear that the transfer of three lots from the trust to ACI, and from ACI to Handel’s LLC, was part of a single prearranged transaction. He maintains that these deeds raise a number of questions about what prices were paid and whether the prices were fair and reasonable.
We express no opinion as to what the deeds mean or could mean. The fact that these deeds may trigger questions does not indicate that Herbert engaged in any wrongdoing. Further, if there is any allegation or evidence of malfeasance, such evidence should have been presented and considered by the trial court.
Another consideration in the present case is that the Trust does not insulate Herbert completely from “vigilant beneficiaries” or prevent any court supervision. (See Ferber, supra, 66 Cal.App.4th at p. 253.) Here, Richard is both an income beneficiary and a contingent remainder beneficiary, and the Trustor did not limit his access to information. Richard has his own trust that receives this income and this trust is administered by a trustee who is both a certified public accountant (CPA) and an attorney. The trustee of Richard’s trust carefully reviews the Trust’s tax returns on an annual basis.
This record also reveals that Herbert provided other evidence of no malfeasance. A CPA has prepared the financial statements of the Trust for the past 20 years. This CPA provided the court with a declaration that he had not seen any evidence that the principal of the trust had been invaded to make distributions to the income beneficiaries or any evidence of mismanagement, especially since the assets had grown significantly.
“ ‘[T]he court should not permit a deviation simply because the beneficiaries request it where the main purpose of the trust is not threatened and no emergency exists or is threatened, ’ [citation], for the power to modify a trust must be exercised ‘sparingly and only in the clearest of cases’ [citation]. Deviation is not justified merely because it would be more advantageous to the beneficiaries or would offer an expedient solution to problems of trust management. [Citations.]” (Crocker-Citizens National Bank v. Younger (1971) 4 Cal.3d 202, 211-212.) In the present case, public policy does not support deviating from the Trustor’s clear intent to relieve Herbert from having Stephen, a remainder beneficiary, examine the ranch’s records.
III. Stephen’s Request for a Written Report
The trial court ruled that the Trust does not require Herbert to provide a written report to Stephen pursuant to section 16061. Stephen’s challenge in his opening brief to this portion of the court’s order is limited to one short paragraph. He acknowledges that the duty under section 16061 may be waived under section 16064, subdivision (a). He argues, however, that the Trust does not expressly or clearly waive the duty to report.
As already stated, section 16061 reads: “Except as provided in Section 16069, on reasonable request by a beneficiary, the trustee shall report to the beneficiary by providing requested information to the beneficiary relating to the administration of the trust relevant to the beneficiary’s interest.” Section 16064 states that “[t]he trustee is not required to account to a beneficiary... (a) [t]o the extent the trust instrument waives the account, ” except that no waiver shall be enforceable in circumstances not present in this case.
Section 16069 provides exceptions-not applicable to the present case-to the requirements to provide certain information to the beneficiary.
Paragraph (f) of the Trust instrument provides that the trustees do not have a duty to provide any inventory of the Trust’s assets. Requiring Herbert to provide Stephen with a report concerning the assets of the Trust would be contrary to the intent of the Trustor as set forth in paragraph (f) of the trust.
We therefore conclude that the lower court correctly determined that the Trust did not obligate Herbert to provide a written report to Stephen.
IV. Stephen’s Request for Prior Disclosure of All Nonroutine Transactions
The court ruled that Herbert did not have to inform Stephen in advance of nonroutine transactions. Stephen insists that the duty under section 16060 “to keep the beneficiaries of the trust reasonably informed of the trust and its administration” includes a duty to inform in advance of nonroutine transactions.
The Probate Code, as already stressed, sets forth the duties of the trustees and no statute requires advanced notice of nonroutine transactions related to the trust. Stephen argues that section 16060 encompasses this duty. This argument, however, is not supported by any California authority or the Law Revision Commission comment to section 16060, which explains as follows: “The trustee is under a duty to communicate to the beneficiary information that is reasonably necessary to enable the beneficiary to enforce the beneficiary’s rights under the trust or to prevent or redress a breach of trust. [Citation.] Ordinarily, the trustee is not under a duty to furnish information to the beneficiary in the absence of a request for the information. [Citation.] Thus, the general duty provided in this section is ordinarily satisfied by compliance with Section 16061 and 16062 unless there are special circumstances requiring particular information to be reported to beneficiaries.” Nothing in section 16061 or section 16062 requires the trustee to provide prior notice of nonroutine transactions.
Stephen cites four out-of-state cases and one federal case concerned with Nevada law, without any analysis, and asserts that these cases reflect the common law of trusts. He notes that in California, “the common law as to trusts is the law of this state” “[e]xcept to the extent that the common law rules governing trusts are modified by statute.” (§ 15002.) He concludes that since these out-of-state cases reflect the common law, they apply to California.
The cases cited by Stephen do not advance his argument. In one of the cases cited by Stephen, Allard v. Pacific National Bank, the beneficiaries of a trust filed suit against the trustee contending that the trustee breached its fiduciary duty to inform the beneficiaries of the trustee’s intent to sell the sole asset held by the trust, a valuable parcel of downtown Seattle real estate. (Allard v. Pacific National Bank (1983) 99 Wash.2d 394, 396, 663 P.2d 104, 106 (Allard).) The Washington Supreme Court noted that under the trust agreement, the trustee was not required to secure the consent of trust beneficiaries before selling trust assets. However, the court held, “The trustee must inform beneficiaries... of all material facts in connection with a nonroutine transaction which significantly affects the trust estate and the interests of the beneficiaries prior to the transaction taking place.” (Id. at pp. 110-111.) In 1984, The Washington Legislature superseded the holding in Allard. Under the Revised Code of Washington (RCW) 11.100.140, a trustee must provide written notice of any “ ‘significant nonroutine transaction’ to ‘each person who is eighteen years or older and to whom income is presently payable or for whom income is presently being accumulated for distribution as income.’ ” (RCW 11.100.140(4).)
Even under the holding of Allard, Stephen’s assertion that the trustee must inform him of all material facts in connection with a nonroutine transaction that significantly affects the trust prior to the transaction’s taking place is far too broad. The court in Allard held that such information needed to be provided to the beneficiaries only when the transaction significantly affected the interests of the beneficiaries. (Allard, supra, 663 P.2d at pp. 110-111.) Here, Stephen is a contingent remainder beneficiary; he has made no attempt to explain how such information would impact his interests. Further, under the Washington statute, the duty to provide notification does not extend to contingent remainder beneficiaries.
In Matter of Wood, a New York case cited by Stephen, the will establishing the trust stated that, upon the death of the income beneficiary, the trustee was “to ‘give the principal of the fund’ to the remainderman.” (Matter of Wood (1992) 177 App.Div.2d 161, 162-163, 581 N.Y.S.2d 405, 406, .) Despite the fact that the sole remainderman notified the bank of the income beneficiary’s death, the trustee liquidated all of the trust assets and did not preserve the capital. (Id. at p. 163.) The court noted that, once the income beneficiary died, the trustee was only permitted to sell a trust asset if it was essential to preserve capital before a distribution could be made. (Ibid.) The court cited comment d to the Restatement Second of Trusts section 345, which states the following: “ ‘If upon the termination of the trust there is a single beneficiary who is entitled to the trust property, it is the duty of the trustee to convey the property to him, rather than to sell it and to pay him the proceeds, unless it is otherwise provided by the terms of the trust[.]’ ” (Matter of Wood, supra, at p. 167.) The court concluded that the trustee did not have the power to sell for investment once the trust terminated. (Ibid.)
Clearly, the present situation is distinguishable from facts in Matter of Wood. The remainderman in Matter of Wood had a vested interest and the trust had matured. In contrast, here, Stephen does not have a vested interest and is a contingent remainder beneficiary.
Another case cited by Stephen, In re Green Charitable Trust, is also distinguishable. (See In re Green Charitable Trust (1988) 172 Mich.App. 298, 431 N.W.2d 492.) In Green, the trustee, who was an attorney of the law firm representing the seller and purchaser of the property was involved in a “multiplicity of... roles [that] created a situation fraught with conflict” and the court imposed a surcharge on the trustee for selling the trust asset at an inadequate price. (Id. at pp. 321, 325.) The court, in concluding that the trustee had a responsibility to inform beneficiaries of the impending sale, based its decision on Michigan statutes and Allard v. Pacific National Bank, supra, 663 P.2d 104. There is nothing in this case that suggests such a duty to inform would be extended to a contingent remainder beneficiary and, unlike the situation in Green, there is no evidence that Herbert is involved in any dealings that have created a conflict.
As already noted, Stephen has simply cited four out-of-state cases and one federal case and provided no analysis. The remaining state case, Interfirst Bank Dallas, N.A. v. Risser (Tex.App. 1987) 739 S.W.2d 882, disapproved of by Texas Commerce Bank, N.A. v. Grizzle (Tex. 2002) 96 S.W.3d 240, and the federal case, Women’s Federal Savings and Loan Ass’n v. Nevada Nat. Bank (9th Cir. 1987) 811 F.2d 1255 deal with the breach of the trustee’s fiduciary duty. These cases do not consider the trustee’s duty to provide advanced notification of nonroutine transactions to contingent remainder beneficiaries. Indeed, it is completely unclear what reason Stephen had for citing these cases.
Accordingly, we conclude that Herbert does not have to inform Stephen in advance of nonroutine transactions involving the assets of the Trust.
DISPOSITION
The probate orders are affirmed. Stephen is to pay the costs of appeal.
We concur: Haerle, Acting P.J., Richman, J.