17 Cal. App. 2d 426 | Cal. Ct. App. | 1936
From a decree adjudging that a trust had been terminated and settling the account of the trustee, Mary Bauer, as the beneficiary under the trust, has appealed.
Heretofore Mary Bauer was the owner of a certain lot and improvements thereon located near the corner of Eighth and Mission Streets in San Francisco. On the 19th day of June, 1918, she conveyed said property to Charles A. Hell-wig to hold the same in trust for her according to the terms designated in the deed. Later Charles A. Hellwig resigned as trustee and Mercantile Trust Company was appointed trustee in his place. Thereafter the Mercantile Trust Company was merged with the American Bank, another corporation, and the two became the American Trust Company.
Mary Bauer was also the owner of certain properties located in Marin County. At San Anselmo in said county the American Trust Company maintains a branch bank. At-some time prior to the commencement of this action Mary Bauer executed a deed of trust in favor of the San Anselmo branch of the American Trust Company to secure a promissory note evidencing an indebtedness.
Asserting that in the instant case the trial court was called upon to hear and settle the accomit of a trustee of a private trust, Mary Bauer contends the trial court was without jurisdiction. She cites and relies on Gillette v. Gillette, 122 Cal. App. 640 [10 Pac. (2d) 760]; Oil Well Supply Co. v. Superior Court, 9 Cal. App. (2d) 624 [51 Pac. (2d) 908], Neither of those decisions is applicable to the facts in the instant case. As will be noted from what has been said above, the pleadings put. in issue the question as to whether the trust had been terminated and also many items of disbursements made by the trustee and in particular the application by the trustee of $14,937.30 which it paid to its branch office at San Anselmo. The issues so presented authorized the petitioner to commence a proceeding under section 1060 of the Code of Civil Procedure. Moreover, at an early date it was decided that the courts may order the trustee of a private trust discharged but that the trustee may not discharge himself. In the absence of a formal release by the beneficiary, the trustee is entitled to a judgment of discharge. See sections 2279-
Pointing to the payments made to the San Anselmo branch, Mary Bauer contends the. rule is unyielding that a trustee shall not, under any circumstances, be allowed to have any dealings in the trust property with himself or acquire any interest therein. The rule contended for is statutory. (Civ. Code, sec. 2230.) But that statute creating the rule creates exceptions thereto. The first exception is that when the beneficiary, having capacity to contract, with the full knowledge of the motives of the trustee and of all other facts concerning the transaction which might affect his own decision, and without the use of any influence on the part of the trustee, permits him to do so. (Miller v. Security-First Nat. Bank of Los Angeles, 219 Cal. 120, 131 [25 Pac. (2d) 420].) During the trial both parties introduced evidence as to whether the trustee acted within the scope of said exception. The trial court held that it did. Appellant has not shown us wherein the finding made in that behalf was not supported by the evidence.
Finally, it is contended that the account rendered by the trustee reveals some improper charges. As we stated above, such subjects were presented by the pleadings, and specific findings were made thereon. In her brief Mary Bauer contends that the said expenditures were in violation of the rule stated in Perry on Trusts, page 720. She quotes: “A trustee has been refused compensation for services rendered by himself for himself as trustee on the ground that no man can make a contract with himself.” But she has not quoted any portion of the record showing that in the instant case the trustee violated the rule which she quotes, and it is settled law that a court of review will not search a record for the purpose of gathering material on which to reverse a trial court. In presenting her point the appellant attacks three different disbursements. On January 6, 1927, the trustee entered a charge of $285 for commission for leasing the real estate. Of that sum $142.50 was paid to Buckbee, Thorne & Company. The rest was
We find no error in the record. The judgment is affirmed.
Nourse, P. J., and Spence, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on December 12, 1936, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on January 11, 1937.