*1 having seen marijuana, with experience that he had prior He tes- year since substance on numerous occasions from appel- substance recovered tified that he examined the based marijuana” lant, and opinion “appeared in his it that the substance odor, He testified texture, etc. to be mari- “appeared recovered from the residence appellant’s smoldng “a brown juana” pipe, and that there was nearby to the marijuana, . . . filled with what pipe appeared brim.” 172.135(2)1 requires contends that appellant before a a qualified expert testimony

presentation returned; that, further, because can be valid indictment that the sub- there was no representation arresting officer marijuana, were the testimony stances that an cause to believe insufficient to constitute probable reject been that contention offense had committed. habeas. denying court’s order affirm district argument rejected the same was made Substantially Sheriff, 651, 86 Nev. 473 P.2d 386 Zampanti v. arresting case the Although appellant represented in that and the issue was thus marijuana, officer substance was before we said of dictum properly appeal, by way us on testimony . the officer satisfies qualified police “. . standard cause the indict- probable necessary ment.”

Affirmed. AMBROSE, Appellant, v. FIRST ELIZABETH ANN NEVADA, Executor NATIONAL BANK OF F. Deceased, Ambrose, the Estate of Elizabeth Respondent. No. 6276 March P.2d 172.135(2) grand jury legal 1 NRS reads: “The can receive none but evidence, degree, hearsay and the best evidence in to the exclusion of secondary evidence.” *2 March denied [Rehearing 1971] Neumann, Reno, for Appellant.

Peter Chase Wood, Carano, Gary McDonald, Bergin A. & Wilson Reno, for Respondent. OPINION Court, Thompson, J.: theBy refusing district an order of the court is from This appeal trust. to terminate was an inter vivos The petition terminate Ann beneficiary, Elizabeth court presented *3 that the trust Ambrose, and was based the upon proposition had been dry a trust since its material purpose had become the The trust was created in 1953 peti- accomplished. Ambrose, mother, Fenno for the declared tioner’s Elizabeth assets and contains dissipation of the of her preventing a that “no of the income or provision spendthrift the or share or thereof any any of trust property part principal transfer, any or lien may any assign, at time create anticipate the trust any the or income of upon principal property therein.” The First Bank Nevada was National of given trustee and was the to invade the named power prin- the for the and maintenance of settlor and her cipal support Ann, until daughter years Elizabeth the became 21 daughter, Thereafter, old. no was made for the the provision of support mother, direction her the daughter except of settlor. The settlor, trust was to after the the continue death of and when daughter years the old was to became 28 receive one half of and age the the of 35 she was to upon attaining remainder, the and the receive trust would end. the

When mother died in daughter juris 1969 her was sui and under no physical disability. mental Since the trust instrument did not for the daughter’s after she had reached 21 and age 28, of until she became the Bank order petitioned court for an dis- allowing payment of sums cretionary daughter, to the asserting that trust instrument to whether such could ambiguous payments was be made. state in what respect The did not instru- petition court, ambiguous, granting ment was nor did in the Bank’s to any The who had notice petition, ambiguity. daughter, point that object did not the Bank’s proceeding, request did, sums her authority discretionary She pay support. however, 23, at the instant to termi- age commence proceeding nate the The agree trust. adversaries that the sole a trust, may who is not under incapacity, termination before the fixed has for its duration period expired, if continuance necessary out carry material Rest. Second Trusts a at purpose. Comment Moreover, they agree that attempt by mother to create a spendthrift for herself was ineffective since such a trust created for a only person persons other than However, the settlor.1 NRS 166.040.2 the Bank contend valid created with protect 1 The propensity mother’s desire to her estate her own spend recklessly to instrument, firmly preamble established of the trust years age. executed when her six but preamble reads: “Whereas, George custody K. Livermore has in and his under his management securities, property except control and and A”, property, part real in attached hereto and listed “Schedule made a hereof, and has time to time invested and from reinvested securities paid in said A” “Schedule and has over from time to time the net Grantor; income from said securities to the and property “Whereas, the said and in are securities listed said schedule Grantor; property “Whereas, the Grantor has incurred numerous debts and liabilities past years present time, payment over the few and at large expended such debts and liabilities has income over and sums above securities, required George received and has said K. large quantities pro- Livermore to sell of her securities deliver the payment discharge liabilities, ceeds to her for the said debts and property belonging with the result and securities *4 dissipated by Grantor have been their and value diminished not under Ninety past One during years; Hundred and Thousand the dollars nine and daughter, Ambrose, aged the Grantor has a “Whereas, Elizabeth six, dependent support who is on the Grantor for her entire and main- tenance; and property the “Whereas, if Grantor continues to have access to the will, present and securities listed in said “Schedule A” she at the rate dissipation assets, very property of said soon of exhaust her and securi- remaining, daughter ties still with the that result both she and her may charges.” public become “Any person by competent 2 NRS 166.040 reads: law to a execute may, writing only, duly executed, by will, conveyance will or deed writing, spendthrift real, personal or other create a trust in mixed or property any person persons.” for other been had not to that its daughter the respect dura- the fixed for period realized and termination before therefore, This contention rests is, has improper. tion expired that “no the clause mainly spendthrift two words of upon transfer, etc. Since the beneficiary” may assign, anticipate, to a clause her. beneficiary, the spendthrift applies language suggesting void The trust instrument is otherwise of when the trust years the who six old daughter, that created, age after the might reaching become a spendthrift years, of 21 and that the desired to protect settlor that do not decide whether the Bank’s eventuality. position We drawn on this has merit the trust instrument as point since this removes trust from the Trust Act Spendthrift particular may beneficiary, with result that the as sole com- daughter, termination. early why turn to is so. pel this explain drawn deemed to have been 1. The Trust is Ambrose Act, and the Trust provisions of the light Spendthrift construction, and enforcement of operation thereof control Act of the point the trust. 166.060. provisions NRS Several that must be made for support a precondition provision a restraint before valid beneficiary and maintenance of may beneficiary’s be imposed. the transfer of “provision that for the For NRS 166.090 example, provides education, beneficiary maintenance support, will . benefit of the alone. . .” NRS 166.100 states will extend to all of that “provision 166.120(1) Finally, estate. . . .” income of the trust Act a that “does not provide from the excepts any beneficiary sums out for or application payment rents, income, earnings or out of capital profits, A lands or personalty.” produce property, or aliened may assigned not so provide anticipated, statutory The mentioned sections beneficiary voluntarily. the Aot that a trust which does not conclusion provide for the and maintenance support 166 and is trust under ch. qualify Since the subject general law termination. regarding early Ambrose Trust does not for the mainte- years old nance of she becomes daughter after age until attains the the trust must fail as a spend- Act. within contemplation order The Bank district court prior contends *5 the the allowing discretionary beneficiary Bank to sums to pay her the seek- somehow from support precludes an early the ing termination of trust in this This proceeding. contention validity is not sound. The of the trust as a spend- thrift trust was raised in the Neither not prior proceeding. right

the of the beneficiary to an termination an compel early issue. the doctrines res Consequently, and col- adjudicata lateral are estoppel not involved and the is not foreclosed early her an asserting right to termination. Clark, Clark v. 80 Nev. 389 P.2d 69 The prior did not order cure the defect in the trust nor instrument not a valid it intended to do trust did become spend- so. The trust for reason authorization for daughter thrift the of court daughter her the support. enjoyed At that in time the point to the right an termination and receive entire early yet trust estate. She had asserted that right. court the possessed to for her until power support trust, to elected exercise to terminate since her right her the to the right entire embraces right support. her served We no material to be perceive purpose Since it does not qualify spend- continuation of this trust. already beneficiary may trust for reasons expressed, NRS 166.- or alienate her interest therein. anticipate, assign 120(1). would, to do so settlor’s intent perhaps, Were she mind it would absurd to With this in appear frustrated. intent, frustrating refuse termination for fear of settlor’s the net refusal is to the trust for when result of such continue benefit trustee. are not doctrine persuaded leading Claflin, (Mass. 1889), v. N.E. American case of Claflin should rule the trust us. That case before announced prin that a direct to the court will not termination time ciple prior therefor, though fixed desires termi even nate, since this contrary would be settlor. purpose think, This, arbitrary we view when automatically applied and without regard all of settlor’s underlying motives. Here, overriding settlor was to protect forcefully estate her own This improvidence. appears from recitals the trust instrument. No reason is expressed in the instrument for delaying daughter’s enjoyment following No settlor’s death. therein for provision made daughter’s between the ages and 28. Should would be denied of time she during die period *6 a together with of these factors

enjoyment All corpus. one’s use and against restraining disposi- strong public policy has an interest no other tion of which property person in (Ind. 1931); v. Simmons Reiser, v. 177 N.E. 369 [Warner 1917); Co., (Minn. 450 Rector N.W. Northwestern Trust Estate, 1903); (Mo. In re Africa’s Dalby, v. 71 S.W. 1948)] (Pa. to conclude that termination 59 A.2d 925 us leads expense and the inci- should decreed spared Bank, the trust. The dent to continued administration of time, within a a final reasonable shall furnish accounting in accordance with appropriate provisions Uniform Trustees Act and this trust shall there- Accounting trust estate and trans- after terminated delivered Ambrose, beneficiary. ferred to Elizabeth Ann the sole Reversed, in with direction to enter accordance judgment this Costs are opinion. with allowed the appellant. Batjer Gunderson, JJ., concur.

Zenoff, J., C. J., Mowbray, dissenting. trust a valid question dissent. is respectfully regards as a material appellant; purpose trust spendthrift to be and the is the trust remains accomplished; appellant does collaterally asserting not provide estopped reasons, to her. For these the decision of for payments court should be affirmed. lower that the trust since it was urges is invalid Appellant her as an to establish a invalid as mother regarded attempt argue does not trust for oneself. Appellant spendthrift initio, however, ab so the is not deter- trust was void question validity invalidity regard earlier with to her mined its Park, v. First Nat’l Bank of Baldwin Coughran mother. 1937); 2 G. Law of Trusts and Bogert, P.2d 1013 (Cal.App. (2d 1965). Trustees, The sole with question ed. whether the a spendthrift this issue is trust is respect regards as the appellant. determined by to this is question Spend-

The answer 166). (NRS Trust 166.020 a Act defines Chapter as “a which the term thereof a trust” trust in “spendthrift involuntary transfer voluntary valid restraint on the imposed.” Appellant interest (for validity regards trust as herself example question creditors), indicated, validity and as was as fraud determine invalidity her mother does not this regarded Instead, question. she asserts trust was not intended as a operate trust as to her. spendthrift Though the to the trust preamble speaks only of intent to restrain her mother’s spending, body of the instru ment was fashioned to restrain the also. appellant’s spending She is to money only receive out of the trust at the discretion trustee until she reaches and she age is precluded from assigning, transferring, a lien creating anticipating interest in the trust. NRS 166.050 indicates that no magic words are necessary for the creation aof trust.1

2. By use words, of these restraint on imposed the voluntary and involuntary transfer of the appellant’s within NRS 166.020. The material of the trust remains to be so the accomplished may not terminate it even though she is living Scott, beneficiary. IV A. Law of *7 Trusts, (3d 1967). 337.3 Under ed. NRS 166.090 the existence aof spendthrift trust does not the char- depend upon acter, capacity, incapacity, competency incompetency of the beneficiary. It is not for us to decide wisdom the creation of the spendthrift trust as to the are appellant, nor those cases pertinent that allow beneficiaries to terminate an “ordinary” trust where the beneficiaries consent to a termina- tion because the are purposes trust A fulfilled. spend- thrift is that “special,” one is established to usually prevent becoming from impoverished. trust,

The of this at purpose least it so was to appears, pro- tect the experiencing what was to happening her mother. Such material does not allow the bene- ficiary to reach the trust fund. The material purpose of this trust has not been served as to the daughter, for that reason alone she cannot terminate the trust. Some states have judicially declared (see policies spendthrift trusts 2 G. Bogert, (2d Law and Trustees, 222, of Trusts ed. §§ 1965)) but the legislature in this state has to sanction chosen them and we must follow that direction. Furthermore, only statutory exception general

rule of the trust anticipation of to according NRS 166.120 exists when the trust does not for to provide payments specific language necessary 1 NRS 166.050. No creation for specific language necessary trust. spend No is for the creation of a writing (construed trust. It is sufficient if the terms of the light chapter necessary) in the of this if the creator manifests an intention to create such a trust. the trust is a valid contends that even if

beneficiary.2Appellant her interest her, anticipate as regards may to The because her. provide in it it not payments answer to the trust does this contention that November, was 1969, necessary judgment In payments. Court, County, entered the Second Judicial District Washoe to that declaring empowered pay appel- respondent judg- lant under the trust The discretionary sums instrument. recites the respondent’s had notice of appellant ment contest the that to the court. did not petition propriety She judgment may disregard act in it. now 56, (1964), Clark, P.2d 69 In Clark v. 80 Nev. hand, this court collateral estoppel stated: “On other record) though even the causes of (estoppel apply different, action are if the same fact issue pre- substantially Anno., See sented.” also ALR3d 318 This rule to right here to bar the claim relief under applies appellant’s 166.120(1). November, 1969, that the trustee declared judgment out discretionary sums empowered pay appellant trust instrument. The ambiguous the trust under appel- recovery that she of her interest may anticipate lant’s assertion trust is the contention that the makes in the founded upon collaterally She attacks no to her. thus provision payments had in a of which she judgment the earlier made proceeding do flies in the face of well- Allowing notice. so true, Clark. it is reasoned rule announced in While indicates, did not determine majority judgment earlier early termination right of the trust, finding make a which determines judgment did outcome of this action. *8 probate proceed- entered in judgments It well settled is judicata. Medin, res v. be Lucich treated are entitled

ings (1950); 46 (1867); Banc. Prob. Prac. 129 § 1 3 Nev. 93 governing Principle on construction: Restraints 2 NRS 166.120. alienation. pro- chapter defined this restrains and trust as A1. alienation, anticipation assignment, generally acceleration hibits voluntary or any under of interest of any by operation beneficiary, law involuntary of or or act of declared, however, exception the trust An when process at or all. payment any application or the bene- does not ficiary rents, income, profits, capital corpus or or out sums out cases, personalty. produce property, earnings, or In such lands estate, capital anticipated, therein, may assigned (Emphasis or alienated. . . . added.) Am.Jur.2d, The thus Judgments a non- because she was re-litigate merely this question ato contesting probate party proceeding. Estate, 8

This case Freman’s Cal. comparable to In re 1960), barred where the Rptr. (Cal.App. accounting the trustee’s first contesting propriety of on retro- the assertion it had refused to make improperly sought active trustee had payments out of trust. The earlier court on told the distribution of the trust and was instructions to make only. distributions later attack prospectively the trustee’s on accounting was viewed as collateral attack earlier as such held to be judgment prevented collateral So also should collateral attack estoppel. pre- sented here be prevented.

For foregoing reasons, we urge dissent and respectfully judgment trial court should affirmed. WILKERSON, Appellant, WILLIAM R. THE STATE v. Respondent. NEVADA, OF

No. 6289 March P.2d 314 Legakes, Defender, Jeffrey Sobel, Robert G. Public D. Defender, Deputy Public Clark County, for Appellant. List, Roy ter, Attorney General, Robert A. District Woof Larry Johns, C.

Attorney, District Clark Deputy Attorney, County, Respondent.