A TRUSTEES STANDING TO ENFORCE CHILD SUPPORT
Laura W. Morgan
Suppose children are the beneficiaries of a trust. Further suppose a parent is not paying the court ordered child support. Can the trustee sue on behalf of the children for child support?
A trustee has an overarching duty to carry out the intentions of the settlor as they have been communicated in the governing instrument. Restatement (Second) of Trusts § 164 comment a (1959). To carry out the intentions of the settlor, It is the trustees paramount duty to preserve and protect the trust estate in compliance with the terms of the trust. 90 C.J.S. Trusts § 247 at 231 (1955). Accord George G. Bogert, The Law of Trusts and Trustees §582 (1980); Restatement (Second) of Trusts § 276.
A trustee is bound to protect the trust property in every reasonable manner during the continuance of the trust. Village of Brookfield v. Pentis, 101 F.2d 516 (7th Cir. 1939) (applying Illinois law); Byrne v. First National Bank of Chicago, 68 Ill. App. 2d 394, 216 N.E.2d 485 (1966); In re Hartzells Will, 43 Ill. App. 2d 118, 192 N.E.2d 697 (1963). In particular, the testamentary trustee has the duty to preserve the assets of the estate and to manage and control the trust corpus. Cordell v. Bright, 24 Ill. App. 2d 76, 164 N.E.2d 81 (1960).
A necessary part of this general duty encompasses vigilant protection of the trust property against deterioration and loss. Restatement (Second) of Trusts § 176 comments b, c. [I]t has been held the duty of the trustee [includes the duty] to protect the trust estate from an attempted alienation of the income contrary to law. 90 C.J.S. Trusts § 247 at 232.
The trustee, in seeking to manage and preserve trust property, necessarily has the power to maintain such suits and actions as are necessary. Bogert, Trusts and Trustees §§ 594, 869; Restatement (Second) of Trusts § 280. The trustee may sue a third person to enforce the rights of the trust and to preserve the trust against wrongful depletion. Bogert, Trusts and Trustees §§ 594, 869.
The trustee has a title (generally legal title) to the trust property, usually has possession, and almost always has all the powers of management and control which are necessary to make the trust property productive and safe. Any wrongful interference with these interests of the normal trustee is therefore a wrong to the trustee and gives him a cause of action for redress or to prevent a continuance of the improper conduct. . . . The right to sue in the ordinary case vests in the trustee as representative.
Bogert, Trusts and Trustees § 869 at 113, citing Village of Lansing v. Sundstrom, 379 Ill. 121, 39 N.E.2d 987 (1942).
If the third person without justification causes harm to trust property, normally only the trustee can sue for damages[.] . . . In the absence of special circumstances, the beneficiary is not eligible to bring or enforce these causes of action which run to his trustee. Thus in the usual case he cannot sue a third person to recover possession of the trust property for himself or the trustee, or for damages for conversion of or injury to trust property or for the recovery of its income . . .or to enjoin a threatened injury to trust property by a third person.
Id. at 115-117.
Consequently, a Trustee should be able to sue for child support on behalf of the trust.