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In the Matter of the Estate of Herschel Joseph West, No. 960260, Filed November 28, 1997.

This opinion is subject to revision before final publication in the Pacific Reporter. IN THE SUPREME COURT OF THE STATE OF UTAH ----oo0oo---In the Matter of the Estate of Herschel Joseph West, Deceased. Herschel J. West, Jr., Richard L. West, and Carole A. West Edmunds, as beneficiaries under the Herschel J. West and Hazel L. West Trust, Plaintiffs and Respondents, v. Marilyn West, an individual, as personal representative of the Estate, Defendant and Petitioner. No. 960260 F I L E D November 28, 1997

Fourth District, Provo Dep't I The Honorable Guy R. Burningham Attorneys: Timothy C. Houpt, Edward R. Munson, Salt Lake City, for plaintiffs Jeffrey W. Wilkinson, Salt Lake City, for defendant --On Certiorari to the Utah Court of Appeals HOWE, Justice: Children listed as beneficiaries of their parents' inter vivos trust challenge the power of their father to convey the

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In the Matter of the Estate of Herschel Joseph West, No. 960260, Filed November 28, 1997.

marital home, the sole trust asset, to himself and his second wife in joint tenancy following the death of the children's mother. The trial court granted judgment on the pleadings in favor of the second wife. The court of appeals reversed, West v. West (In re Estate of West), 915 P.2d 504 (Utah Ct. App. 1996), and we granted certiorari. 925 P.2d 963 (Utah 1996). FACTS In 1986, Herschel West, Sr., and his wife Hazel West executed a "Declaration of Trust" (the West Trust or the trust), declaring that they held their Provo home in trust for the benefit of themselves and after their deaths for their three adult children: Herschel West, Jr., Richard West, and Carole Ann West Edmunds--plaintiffs in this case. This property was the sole asset of the trust. Hazel West died on June 19, 1988, and seventeen months later Herschel West, Sr., remarried. On January 16, 1991, acting as the "Sole Trustee," he executed a "Quit Claim Deed," conveying the property to himself and his second wife Marilyn West, the defendant in this case, as joint tenants with full rights of survivorship. He died later that same year. Marilyn West, as personal representative of Herschel's estate, did not include the property in the inventory of the estate because she believed the property passed to her automatically as the surviving joint tenant under the quitclaim deed. Herschel and Hazel's children, contingent beneficiaries under the trust, brought this suit against Marilyn West in the district court, alleging that the quitclaim deed was voidable as a violation of Herschel West's fiduciary duties as trustee and seeking, along with other relief, a return of the property to the trust. The district court consolidated the suit with the probate of Herschel West's estate. Marilyn West moved for judgment on the pleadings pursuant to Utah Rule of Civil Procedure 12(c), and the children filed a cross-motion for partial summary judgment. The district court granted Marilyn West's motion for judgment on the pleadings and denied the children's motion. The court held that the trust document was valid and unambiguous but ruled as a matter of law that the trust had been revoked pursuant to paragraph 5 of the document, which provides, "The sale or disposition by us of the whole or any part of the property held hereunder shall constitute as to such whole or part a revocation of this trust." Thus when Herschel West, Sr., acting as the surviving and sole trustee, quitclaimed the property to himself and his second wife, the trust was revoked. The West children appealed to this court, and we poured the case to the court of appeals. The court of appeals likewise determined that the trust document was unambiguous but held as a matter of law that Herschel West's attempt to revoke the trust by conveying the property out of the trust under paragraph 5 was ineffective. West, 915 P.2d at 508. The court held that the instrument gave Herschel West no power as sole trustee to terminate the trust and that the powers of revocation he had reserved in paragraph 5 had been reserved to himself and Hazel West jointly, as cosettlors, and could not be exercised unilaterally by him as the surviving settlor. Id. at 506-08. In effect, the court of appeals concluded that the trust became irrevocable upon the death of Hazel West. Accordingly, the court reversed the judgment of the trial court and remanded "for the entry of an order restoring the property to the joint trust and for such further proceedings [as] the trial court determines are necessary." Id. at 508. We granted Marilyn West's certiorari petition to review the decision of the court of appeals. STANDARD OF REVIEW While the district court had granted Marilyn West a judgment on the pleadings under Utah Rule of Civil Procedure 12, the court of appeals describes its decision as a reversal of "the trial court's grant of summary judgment." West, 915 P.2d at 505. Marilyn makes much of this discrepancy, but for purposes of appellate review, the standard for reviewing a summary judgment or a judgment on the pleadings is the same, since motions for either kind of judgment can be granted only as a matter of law. In reviewing a judgment under rule 12, a court "must accept the material allegations of the [nonmoving party's pleadings] as true, . . . and the trial court's ruling should be affirmed only if it clearly appears that [the nonmoving party] can prove no set of facts in support of his claim." Colman v. Utah State Land Bd., 795 P.2d 622, 624 (Utah 1990) (citations omitted). Similarly, in reviewing a grant of summary judgment under rule 56, an appellate court may reverse the trial court only if "there is no genuine issue of material fact and . . . the moving party is entitled to judgment as a matter of law." Utah R. Civ. P. 56(c). The case as it comes to us therefore presents only issues of law, and we afford the decision of the court of appeals no deference but review it for correctness. See State v. Pena, 869 P.2d 932, 936 (Utah 1994) (questions of law are reviewed for correctness).

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In the Matter of the Estate of Herschel Joseph West, No. 960260, Filed November 28, 1997.

ANALYSIS The core issue here is whether Herschel West, either as sole trustee or as surviving settlor, had the power and the right under state law or the terms of the trust to convey the property out of the trust to himself and his wife Marilyn West after his first wife Hazel West died. A trust . . . is a fiduciary relationship with respect to property, subjecting the person by whom the title to the property is held [the trustee] to equitable duties to deal with the property for the benefit of another person [the beneficiary], which arises as a result of a manifestation [by the settlor, or trustor] of an intention to create it. Restatement (Second) of Trusts

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