Brooks v. MaillouxBrooks v. Mailloux
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from an order of the Superior Court of Tuolumne County. Laura Leslie Krieg, Judge.
McCormick, Barstow, Sheppard, Wayte & Carruth and Todd W. Baxter for Plaintiff and Appellant.
Fores Macko Johnston & Chartrand and Anthony D. Johnston for Defendant and Appellant, Price W. Mailloux.
Dambacher, Trujillo & Associates and Gary P. Dambacher for Defendant and Appellant, Deniece B. Mailloux.
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This matter arises from an appeal and cross-appeal following summary adjudication in a probate proceeding in which the court determined that an amendment to a trust was valid but found a land use restriction within that amendment invalid and unenforceable. The trust‘s principal asset is an 8,000-acre property in Tuolumne County, referred to by the parties as “the Ranch.”
Deniece Mailloux, Price Mailloux, and Lee Brooks are the children of Patricia Brooks. Prior to Patricia‘s death, each sibling held a one-quarter interest in the Ranch as tenants in common, while Patricia held her one-quarter interest in a trust. During her lifetime, Patricia executed a restated trust and later, a trust amendment (the Trust Amendment)1 accompanied by handwritten instructions (the Handwritten Instructions). Under these documents, Patricia‘s one-quarter interest in the Ranch was to be distributed equally among her three children upon her death. The Trust Amendment and Handwritten Instructions imposed directives requiring each sibling to use their designated parcels to “continue to operate the family ranches … as it is used.” These use directives remain in effect for the lifetime of each sibling and are enforceable by forfeiture.
After Patricia‘s death, Price allegedly pastured his cattle in one of the fields designated to Lee. Lee filed a petition seeking enforcement of the use directives. Deniece and Price argued that the Trust Amendment was invalid for lack of delivery to Deniece, a cotrustee, during Patricia‘s lifetime. On summary adjudication, the lower court found that the Trust Amendment was valid, but that the land use directives were invalid and unenforceable.
Lee, plaintiff and appellant, challenges the court‘s finding that the land use restriction was invalid. Deniece and Price, defendants and cross-appellants, challenge the
FACTUAL AND PROCEDURAL HISTORY
The Family Ranch
This case involves one of the founding families of Sonora, California, and a plot of land that has been in the Price family for over 100 years. The family has been in the cattle ranching business for three generations.
Louis and Melba Price held their interests in the Ranch in inter vivos trusts: The Louis B. Price and Melba B. Price Trust dated February 24, 1972, and the Louis B. Price and Melba B. Price Community Property Trust dated March 13, 1973 (the “Price Trusts“).
Patricia was the daughter of Louis and Melba. Upon the death of Louis and Melba, Patricia and each of her children, Lee, Deniece, and Price, each received one-quarter interests in the Ranch as tenants in common. Patricia held her one-quarter interest in the Ranch in an inter vivos trust, The Patricia B. Brooks 1980 Separate Property Trust (Patricia‘s Trust), of which she was the settlor and trustee.
The Amendment to Patricia‘s Trust
On September 4, 2008, Patricia‘s Trust was restated. Deniece was named cotrustee.
On August 19, 2015, Patricia executed the Trust Amendment. She buttressed the Trust Amendment with the Handwritten Instructions, purporting to impose directives concerning how the land should be used.
Administration of the Trust and the Trust Amendment
Patricia died in December 2016. Deniece, the cotrustee of Patricia‘s Trust, was required to distribute the assets of the Trust estate in accordance with the terms of Patricia‘s Trust.
On January 8, 2018, the final trust distribution quitclaim deed was recorded (Quitclaim Deed). The Quitclaim Deed, signed by Deniece, provides that the Ranch shall continue to be used in the manner Patricia approved and arranged while she was alive and “if any Quitclaimee herein contests the distribution set forth below, said Quitclaimee shall forfeit his or her interest in the property.”
The Quitclaim Deed further specifies:
“Specifically, the Ford Field, Mann Field, Hospital Field, Barn Field and Ceasar Field are to continue to be used by LEE R. BROOKS and DENIECE B. MAILLOUX until their respective deaths; and the Calf Pasture, Rushing Mt., the Pipeline Field, Bull Field and the property in the mountains are to continue to be used by PRICE W. MAILLOUX until his death.”
Exhibit A attached to the Quitclaim Deed explicitly references the terms of the Trust Amendment, including the forfeiture provision.
On May 28, 2019, Deniece provided a first and final account and report of trustee. An amended account, dated September 18, 2020, included copies of the Trust Amendment and the Handwritten Instructions as exhibits to the accounting.
The Forfeiture Petition
On June 2, 2020, Lee filed a petition to confirm exercise of power of termination, determine real property is trust asset, compel reconveyance of real property for breach of condition subsequent and to quiet title, instruct trustee to convey real property, and for temporary restraining order, declaratory relief, preliminary injunction, and permanent injunction (forfeiture petition). Lee alleged that since Patricia‘s death, Price has repeatedly placed his livestock and molasses buckets on fields designed to Lee.
“Are the provisions set forth at Article V, Sections 5.1A, B., C., and D of the First Amendment Dated August 19, 2015 to The Patricia B. Brooks 1980 Separate Property Trust (hereafter, ‘the Patty Trust‘) … valid and legally enforceable against a contingent beneficiary of the Patty Trust who is already a co-owner of a separate, co-tenant fee simple interest in the subject land, and whose separate, prior co-tenant, fee simple ownership interest was obtained independently of any distribution from the [Patty] Trust.”
On June 9, 2021, the court granted the parties’ joint request for summary adjudication pursuant to the
On July 21, 2021, Price and Deniece filed a cross-complaint for damages.
On October 21, 2021, Price and Deniece filed their memorandum of points and authorities in support of the motion for summary adjudication. In addition to arguing that the land use directives are unenforceable, Price and Deniece asserted that the Trust Amendment was invalid as it was not properly delivered during Patricia‘s lifetime.
DISCUSSION
I. Lee‘s Appeal is Timely
In their combined respondents’ and appellants’ opening brief, Price and Deniece renew their contention that Lee‘s appeal is untimely. They argue that the court‘s May 23,
This court has now considered this issue three times. Finding no compelling reason to depart from our prior determination that the May 23, 2022 order was not appealable, we reject Price and Deniece‘s argument and find Lee‘s appeal timely.
A. Background
On December 30, 2021, the probate court issued a tentative decision granting Price and Deniece‘s motion for adjudication of legal issues on Lee‘s forfeiture petition.
On May 23, 2022, after repeated unsuccessful attempts by both sides to submit a proposed final order or judgment, the Honorable Kate P. Segerstrom issued an order disposing of the forfeiture petition (the May 23rd Order).
On June 13, 2022, notice of entry of the court‘s May 23rd Order was filed and served by Lee‘s attorney.
On August 26, 2022, counsel for Lee e-mailed opposing counsel conceding that nothing remained of case No. PR11636 after the order.
On September 8, 2022, Lee filed a notice of appeal. (See case No. F084967.)
On November 22, 2022, this court filed an order dismissing Lee‘s appeal without prejudice as premature. (See case No. F084967.)
On November 15, 2023, the Honorable Laura L. Krieg issued a tentative decision observing that Lee had conceded the May 23rd Order was dispositive of the entire action.
On January 9, 2024, Judge Krieg entered an order amending the May 23rd Order nunc pro tunc to confirm that no further document was needed to finalize it (the January 9th Order).
On January 16, 2024, counsel for Price served notice of entry of judgment on the January 9th Order.
On April 2, 2024, Price and Deniece filed a notice of cross-appeal limited to the delivery ruling (Cal. Rules of Court, rule 8.108(g)).
On September 13, 2024, Price and Deniece moved to dismiss Lee‘s appeal as untimely under California Rules of Court, rule 8.104(a)(1)(B). This court granted their request for judicial notice, but denied the motion, citing Meinhardt v. City of Sunnyvale (2024) 16 Cal.5th 643.
B. Analysis
A ruling adjudicating legal issues under
Price and Deniece contend that the January 9th Order cannot serve as the operative judgment because it was entered nunc pro tunc and effected no substantive change to the May 23rd Order. Relying on Estate of Eckstrom, they argue that a nunc pro tunc order making no substantive change cannot restart the clock to appeal, and that the operative date to appeal commenced on June 13, 2022, when the May 23rd Order was entered. (Estate of Eckstrom (1960) 54 Cal.2d 540, 544.) The argument fails.
A nunc pro tunc order is, by definition, a corrective device. Its function is to make the record reflect what the court in fact did at an earlier time, not to supply a disposition the court did not previously render. (Estate of Eckstrom, supra, 54 Cal.2d at p. 544 [” ‘The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered—not to make an order now for then, but to enter now for then an order previously made’ “]; accord, Siegal v. Superior Court (1968) 68 Cal.2d 97, 101.) Such an order cannot create finality that the underlying order
Neither the May 23rd Order nor the notice of entry of that order stated it disposed of the entire action, and the subsequent procedural history confirms the absence of such clarity. On August 26, 2022, counsel for Lee conceded by e-mail that there were no remaining issues to litigate following the court‘s May 23rd Order. On November 15, 2023, the court issued a tentative decision finding that Lee had conceded the May 23rd Order was dispositive. But a later recognition that an order resolved all remaining issues is not equivalent to the contemporaneous entry of an appealable final judgment. The May 23rd Order could not be “corrected” to reflect a conclusion that had not been made.
The characterization Price and Deniece urge therefore leads to one of two conclusions, neither of which supports their position.
First, assuming the January 9th Order was merely a ministerial correction that adds nothing of substance to the May 23rd Order, then no final judgment has ever been entered. The May 23rd Order resolved a joint motion brought under
Under this reading, Lee‘s appeal is not untimely. It is premature. The proper disposition would be dismissal without prejudice and remand for entry of judgment, precisely as this court ordered in case No. F084967.
Second, if the January 9th Order provided the final disposition that the May 23rd Order lacked, then Lee‘s notice of appeal is timely. This reading comports with the procedural history of this case.
Price and Deniece drafted and submitted the January 9th Order to the court. The order‘s stated purpose was to confirm that no further document was required to finalize
Price and Deniece cannot have it both ways. Having obtained an order they represented to the court as the instrument necessary to finalize the disposition, they cannot now recharacterize that order as a nullity, thereby making the timeline to appeal back by approximately 18 months.
We acknowledge that the lower court issued an order clarifying the appealability of the May 23rd Order. However, its characterization of an order as final and appealable is not controlling. The existence of appellate jurisdiction is a question for the reviewing court, and a trial court cannot retroactively render its own prior interlocutory order final by subsequently declaring it to have been final. (Kirk v. Ratner (2022) 74 Cal.App.4th 1052, 1060 [“A superior court‘s order is generally appealable only when made so by statute“].)
Based on the foregoing, we conclude that Lee‘s notice of appeal, filed March 5, 2024, was timely filed.
II. The Trust Amendment Does Not Fail for Lack of Delivery
Deniece and Price assert the Trust Amendment is invalid for lack of delivery during Patricia‘s lifetime. We are not persuaded.
A. Background
1. The Trust and Evidence Related to the Trust Amendment
Patricia provided for the methods of revocation and modification of the Trust in article VII, section 7.2, which provides the following:
“7.2 Amendment. The Settlor may at any time during the Settlor‘s lifetime, amend any of the terms of this instrument by a written instrument executed by the Settlor and delivered personally or by certified mail to the
Trustee. No amendment shall substantially increase the duties or liabilities of the Trustee or change the Trustee‘s compensation without the Trustee‘s consent, nor shall the Trustee be obligated to act under such an amendment unless the Trustee accepts it.”
Lee submitted a declaration in the court below, stating the following:
“3. Subsequent to the drafting and execution of the holographic document, the document remained on my mother‘s desk. When my mother was still alive, Deniece would come and visit. During one of those visits, while I was also at my mother‘s house, I saw Deniece review the holographic document at my mother‘s house.
“4. That same day, after reviewing the will, Deniece called me to ask me if I was ok with the terms of the holographic documents, specifically the provision that gifts my mother‘s house to Deniece.
“5. Once the holographic document was submitted to Richard Calone, the family trust attorney, I was included in emails between Deniece and Richard discussing the holographic instrument, the First Amendment and the conditions subsequent. A true and correct copy of the emails are attached hereto as Exhibit A.”
On March 1, 2016, in an e-mail correspondence between Calone and Deniece, Calone referenced the distribution of the fields: “Then the ranch will be fractionalized by existing fields if your Mom signed my last amendment to her trust which I have not seen come back. You might ask LEE and his wife for a signed copy for my files as it is very important document.” Deniece replied, “I will ask Lee whether the amendment to my mothers [sic] property trust/will has been returned to you. I was not a party to the finalization of that document but I trust that you and Lee executed it so that when mom passes there won‘t be any surprises or grumbling.” She added: ” ‘Fractionalized’ use of the ranch is the best plan for the future as long as the ranch and the mountain property remains one entity. As a fiduciary, as well as a beneficiary, I expect everyone to be treated fairly.”
On March 7, 2016, Calone wrote the following response to questions Deniece had e-mailed to him:
“I‘m trying to imagine the ranch after mom has passed and the trust has terminated.
“The ranch will have a title change obviously.
“Will we retitle the entire ranch and mountains to our 3 separate property trusts with one third undivided interest? Answer Yes-unless Price objects to your Mother‘s instruction to farm/ranch by fields instead of legal descriptions.” (Italics added.)
On March 8, 2016, Calone sent Deniece another e-mail referencing the fields: “The termination of the trust is by deed equally to the three of you. Then the operation will be by lessee by carrying capacity to the two operations from the three owners hopefully by the fields your MOM laid out in her trust.”
Finally, on March 24, 2016, someone within the same law firm as Calone, Calone and Harrel, confirmed they had received a copy of the signed Trust Amendment:
“During our telephone conversation this morning, you asked me to check to see if Patti ever signed the Trust Amendment that we sent her last fall. I see that we did receive it back signed. Copy of First Amendment, Exhibit A to First Amendment and 2015 Will are attached above.”
B. The Probate Court‘s Ruling on Delivery
On December 30, 2021, the court issued an order after hearing, finding the Trust Amendment valid, but the use directives invalid and unenforceable. With respect to delivery of the Trust Amendment, the court explained that section 7.2 of the Trust permitted modification by signed writing delivered to the trustee. The court held the provision permitting delivery by personal or certified mail was neither expressly nor impliedly exclusive under Cundall v. Mitchell-Clyde (2020) 51 Cal.App.5th 571, 586.)4
Delivery to Deniece, also a cotrustee, presented a triable issue. Nonetheless, the court held that Deniece was estopped from contesting delivery, explaining she had accepted the amendment (
C. Standard of Review
A motion for summary judgment or summary adjudication seeks determination of an action or issue as a matter of law under
A defendant moving for summary judgment bears the initial burden of showing “there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (
Summary adjudication operates in the same manner as summary judgment but addresses discrete claims or issues rather than the entire action. (Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 398;
A grant of summary adjudication is binding as to the issues determined and precludes relitigation of those issues. (Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55, 99.)
” ‘In reviewing the propriety of a summary [adjudication], the appellate court independently reviews the record that was before the trial court…. We must determine whether the facts as shown by the parties give rise to a triable issue of material fact.” (Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1765.) The reviewing court construes the evidence in the light most favorable to the opposing party and resolves doubts in favor of denying the motion. (Ibid.)
D. Permissible Methods for Modifying the Trust
The Probate Code governs revocation and modification of a trust.
Article VII, section 7.2, which addresses modifications to the Trust, does use language of exclusivity or limitation. It specifies a method of modification but contains no exclusivity language, such as “shall,” “solely,” “must,” or “only by,” and no other provision of the Trust expressly precludes modification by the statutory revocation procedures. Patricia therefore retained the ability to amend the Trust “[b]y a writing, other than a will, signed by the settlor … and delivered to the trustee during the lifetime of the settlor.” (
Price and Deniece contend that Haggerty should not retroactively apply here, arguing that to do so would contravene public policy and fairness principles. They reason that Patricia should not have been permitted to amend her trust in secret. The record does not support their assertion that Patricia‘s trust was amended in secret. In any event, Haggerty did not announce a new rule. It resolved a split of authority, confirming that a trust may be modified through the revocation procedure unless the instrument provides an exclusive method of modification. (Haggerty, supra, 15 Cal.5th at p. 736.) We see no reason why it should not apply here.
II. Relevant Legal Principles Governing Delivery of a Trust Amendment
The question we must answer is whether delivery of the Trust Amendment to Deniece, the sole surviving cotrustee, occurred within Patricia‘s lifetime. The term “delivery” is not explicitly defined in
We also find some guidance based on the purposes underlying the lifetime delivery requirement, which are threefold. First, the requirement authenticates the instrument as the settlor‘s act. Second, it confirms that the settlor intended the instrument to have operative effect, rather than remain a draft. Third, it protects the trustee, who might otherwise disseminate trust property “in ignorance of the existence of an attempted exercise of the power that had not been delivered to the trustee.” (Estate of Wood (1973) 32 Cal.App.3d 862, 883.)
III. Delivery of the Trust Amendment During Patricia‘s Lifetime
Lee does not dispute that the Trust Amendment required delivery of the Trust Amendment to both Patricia and Deniece, as cotrustees.5 We agree. Given that one
Delivery was made to Patricia, the settlor and trustee, when she made the Trust Amendment and delivered it to her attorney. (See generally Gardenhire v. Superior Court (2005) 127 Cal.App.4th 882, 888 (Gardenhire) [settlor-trustee‘s execution of a will effectively revoking her trust was sufficient to provide herself with notice of intent to revoke]; Haggerty v. Thornton (2021) 68 Cal.App.5th 1003, 1006 [finding delivery occurred where settlor-trustee executed amendment of a trust and then sent it to her attorney, but otherwise failed to fully comply with the method for modification].)
With respect to Deniece, the probate court acknowledged a triable issue of material fact as to whether delivery of the Trust Amendment had occurred to her. The court bypassed the question by concluding that estoppel foreclosed Deniece‘s challenge to delivery. The court observed that Deniece had administered the Trust under the Amendment for years. Under the circumstances, we agree with the court‘s conclusion that Deniece cannot now contest delivery of the Trust Amendment.
Preliminarily, we observe that the record reflects that Deniece had contemporaneous knowledge of the Trust Amendment, and that knowledge went beyond a general awareness that an amendment existed. The e-mails Lee submitted reflect that Patricia and Calone discussed the fractionalization of the Ranch that would occur after Patricia‘s death, i.e., the use directives. Lee also submitted a sworn declaration that he observed Deniece review the Handwritten Instructions.
We do not suggest that these facts cure any defect in the lifetime-delivery requirement. Contemporaneous knowledge of an amendment is not tantamount to
Accordingly, although the amendment provision refers to “the Trustee” in the singular, the Trust contemplates delivery to all serving trustees.
Assuming a defect existed in the lifetime delivery requirement, we are not persuaded that it supports invalidation of the Trust Amendment. As trustee, Deniece represented that Patricia had established the Trust on August 21, 1980, with Patricia as settlor, that Patricia and Deniece were cotrustees, and that the Trust had been “amended by that certain [Trust] Amendment to the Patricia B. Brooks Separate Property Trust dated August 21, 1980, restated September 4, 2008, dated August 19, 2015.” Deniece attached the 1980 Trust, the Trust Amendment, and the Handwritten Instructions concerning continued use of the fields as the operative trust documents. Deniece also served notices under
Price did not object to the accounting and neither Price nor Deniece challenged the validity of the Trust Amendment or Handwritten Instructions. In her verified accounting, Deniece identified the Trust Amendment as part of the operative trust, attached it along with the 1980 Trust and the Handwritten Instructions as the governing trust documents, and obtained judicial approval for trust administration conducted on that basis. The record also reflects that Deniece accepted a life estate in Patricia‘s home and guest house, conveyed only in the Handwritten Instructions and the First Amendment.
Rather than taking any of the statutory paths available to a trustee who disputes an amendment, Deniece administered the Trust under the terms of the Trust Amendment and Handwritten Instructions. She disseminated the Amendment as part of the trust‘s operative terms in discharging her duty under
The delivery requirement is a procedural protection for trustees, designed, in part, to ensure they are not bound by a modification of which they lacked notice. (Estate of Wood, supra, 32 Cal.App.3d at p. 883.) But a trustee who knowingly administers a trust under an amendment has neither lacked notice nor suffered prejudice from any technical defect in delivery. Allowing a trustee to administer a trust under an amendment, invoke its authority to accept benefits conveyed under the amendment, and later, repudiate the instrument when its terms become unfavorable would turn a procedural safeguard into a strategic weapon. In our view, construing the lifetime delivery requirement to permit such gamesmanship would expand a procedural safeguard beyond its intended function.
Based on the foregoing, we conclude that Deniece‘s acceptance of the Trust Amendment forecloses her challenge to the lifetime delivery requirement.
IV. Enforceability of the Use Directives
Lee contends the lower court erred in finding that the use directives are invalid and unenforceable. We are not persuaded.
As relevant here, article V, section 5.1 of the Trust Amendment, executed August 19, 2015, provides the following:
“5.2 Specific Directions and Instructions. Notwithstanding the legal vesting of the various properties at my death, it is my direction and instruction that my children continue to operate the family ranches as follows:
“A. It is my direction that the ranch which has been in my family for over one hundred (100) years be used, notwithstanding the unequal division into thirds, continue to be used as it is used and divided at the present time by my three (3) children, which I have approved and arranged during my lifetime. Specifically, the Ford Field, Mann Field, Hospital Field, Barn Field and Ceasar and Steer Field are presently being used by my son LEE R. BROOKS and my daughter DENIECE B. MAILLOUX. It is my direction that DENIECE B. MAILLOUX and LEE R. BROOKS continue using these fields as currently used until their respective deaths.
“B. The Calf Pasture, Rushing Mt., the Pipeline Field, Bull Field and the property in the mountains is currently being used by my son PRICE W. MAILLOUX. It is my direction that PRICE W. MAILLOUX continue using these properties as currently used until his death.
“C. My Sons, PRICE W. MAILLOUX and LEE R. BROOKS each already have homes on the ranch without separate deed. It is my direction that my daughter DENIECE B. MAILLOUX receive the use of my house and guest house at my death until she is no longer able.
“Attached hereto as Exhibit ‘A’ is a true and correct copy of my handwritten instructions confirming the directions set forth in Paragraphs A through C above of this Section 5.1. If any provision contained herein conflicts with my intentions as set forth in my handwritten instructions and directions, my handwritten instructions attached hereto as Exhibit ‘A’ shall control.
“D. If any of my children refuse or fail to comply with my directions and instructions at my death or subsequent thereto, the gift of my twenty-five percent (25%) interest in said Property in equal shares to each of them shall become void as to the child failing to comply and that child
shall forfeit all right to receive his or her share of my interest in the Property.”
Exhibit A to the Trust Amendment contains the Handwritten Instructions. The Handwritten Instructions, dated February 12, 2014, provide the following:
“I want the ranch, that has been in my family for over a hundred years, to be used and divided as it is used and divided at the present time prior to my death. Specifically, the Ford field, Mann field, Hospital field, Steer field, Barn field and Ceasar field is presently being used by my son Lee and my daughter Deniece. My wish is for Deniece and Lee to continue using those fields for their lifetime. The Calf pasture, Rushing Mt., the Pipeline field, bull field and the property in the mountains is being used by my son Price and my wish is for Price to continue using those pieces of property for his lifetime. My sons Lee and Price already have homes on the ranch, I want my daughter, Deniece, to have my house and guesthouse.
“As to all provisions, they will remain the same.
“If any of my three children contest my will and wishes that child will result with an inheritance of $1 total.”
B. The Probate Court‘s Ruling
Having found the Trust Amendment valid, the probate court next addressed whether the use directives were valid and enforceable. The court concluded that Patricia‘s trust did not create any enforceable restriction limiting the siblings’ preexisting rights as tenants in common to enter, occupy, and use the Ranch as a whole. The court reasoned that, had the Trust imposed such a restriction by penalty of forfeiture, it would constitute an unreasonable restraint on alienation. The court further found the directive that the siblings “continue to operate the family ranches” impermissibly vague and ambiguous.
The court explained that Patricia‘s directives attempted to create two conditions. First, that each child “continue using” their designated fields; and second, that each child “continue to operate the family ranches … as it is used.” Because Patricia made these directives subject to forfeiture, the court observed that settled principles disfavoring conditions subsequent and forfeiture governed its interpretation.
The court therefore concluded that the siblings were not required to continue using their designated fields to preserve their interests. Otherwise, the condition would constitute an unenforceable restraint on alienation.
The court further held that use of another sibling‘s designated area could not trigger forfeiture in light of the siblings’ preexisting tenancy in common interests in the Ranch. Each sibling holds an equal tenancy-in-common interest with the right to enter, occupy, and use the whole of the Ranch, and no individual sibling possesses the right to oust or exclude another. Thus, the court reasoned, if Price used the Ford field, an area Patricia designated to Lee and Deniece, such use would not constitute wrongdoing absent waste or impermissible interference with cotenant rights.
The court distinguished authority involving enforceable forfeiture conditions. In Walton v. City of Red Bluff (1991) 2 Cal.App.4th 117, for example, the grantors owned the subject property in fee simple, expressly conditioned the conveyance upon performance, and included clear language specifying consequences for breach. By contrast, the court concluded Patricia expressed only a “wish” that her children would use the designated fields and included no express forfeiture mechanism tied to one sibling‘s use of another sibling‘s designated field.
With respect to the directive that the siblings “continue to operate” the Ranch, the court found that condition was impermissibly vague. According to the court, the requirement that the siblings not “fail to continue to operate the family ranches as they
Finally, the court observed that alternative remedies remained available. Specifically, it noted that Lee has a separate action pending against Price (case No. CV63882), asserting claims for waste, nuisance, or conversion.
C. Standard of Review
” ‘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.’ ” (Gardenhire, supra, 127 Cal.App.4th at p. 888; see
We review a claim involving interpretation of a trust or a trust amendment de novo. (Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1130; Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 213-214; Estate of Powell (2000) 83 Cal.App.4th 1434, 1439.) “In construing a trust instrument, the intent of the trustor prevails and it must be ascertained from the whole of the trust instrument, not just separate parts of it.” (Scharlin v. Superior Court (1992) 9 Cal.App.4th 162, 168.)
D. Analysis
To determine whether the use directives are enforceable, we first address the vehicle by which Patricia sought to convey her gift. The use directives, which appear in
Under one view, they operate as conditions subsequent subject to forfeiture. Pursuant to this characterization, section 5.2 conveys a fee subject to defeasance on breach of the use directives in section 5.1, with section 5.1(D)‘s forfeiture provision operating as the penalty. Under another view, the directives express a precatory wish, which impose no binding obligation. We conclude that Patricia intended to establish conditions subsequent, enforceable by forfeiture, which continue for the lifetime of each sibling.
Our reasoning is set forth in subheadings C.1. through C.3. of this part, post, which address the legal character of the use directives. We then consider, in subheading C.4., post, whether the directives constitute an unreasonable restraint on alienation, and in subheading C.5., post, whether their terms are sufficiently definite to permit enforcement.
1. Whether Patricia‘s Use Directives Create Binding Obligations or Express Precatory Wishes
“The expression of a desire, wish, recommendation, assurance, request, etc., is prima facie precatory in character.” Whereas, “a ‘direction’ prima facie imports a command.” No hard-and-fast rule governs all cases. (Estate of Farelly (1931) 214 Cal. 199, 204-205.)
Applying that framework, article V, section 5.1‘s language is mandatory on its face. The provision is titled, “Specific Directions and Instructions.” The preface states that “it is my direction and instruction that my children continue to operate the family ranches.” Each operative subsection states, “It is my direction.” Section 5.1(D) provides that any noncomplying child‘s share “shall become void” and that child “shall forfeit” all right to his or her share. Repeated use of the terms, “direction” and “instruction,” coupled with the forfeiture remedy, is the formulation of a condition subsequent rather than a precatory wish.
In contrast, the Handwritten Instructions contain precatory language. We have italicized the relevant operating terms below:
”I want the ranch, that has been in my family for over a hundred years, to be used and divided as it is used and divided at the present time prior to my death. Specifically, the Ford field, Mann field, Hospital field, Steer field, Barn field and Ceasar field is presently being used by my son Lee and my daughter Deniece. My wish is for Deniece and Lee to continue using those fields for their lifetime. The Calf pasture, Rushing Mt., the Pipeline field, bull field and the property in the mountains is being used by my son Price and my wish is for Price to continue using those pieces of property for his lifetime. My sons Lee and Price already have homes on the ranch, I want my daughter, Deniece, to have my house and guesthouse.
“As to all provisions, they will remain the same.
“If any of my three children contest my will and wishes that child will result with an inheritance of $1 total.” (Italics added.)
The Handwritten Instruction uses “I want” twice as the operative governing phrase. First, regarding the Ranch generally: ”I want the ranch ... to be used and divided as it is used and divided at the present time prior to my death.” Second, in connection with the provision addressing Patricia‘s house, which was conveyed to Deniece: ”I want my daughter, Deniece, to have my house and guesthouse.”
The word “wish” also appears three times. First, in connection with the fields designated to each sibling. Second, in the plural form, “wishes,” is used in connection with the no contest clause: “If any of my three children contest my will and wishes that child will result with an inheritance of $1 total.” (Italics added.)
Standing alone, the phrases, “I want” and “my wish” ordinarily convey a preference rather than a directive and are therefore commonly understood as precatory. But Patricia did not leave those expressions without consequence. She expressly provided that any child who “contest[s] my will and wishes” would receive only $1. By attaching a forfeiture provision to her “wishes,” Patricia manifested an intent that they be enforced and not treated as mere expressions of preference or hope. Thus, although the
2. The Trust Amendment and Handwritten Instructions Do Not Materially Conflict
The probate court invoked the “inconsistency-resolution clause” (art. V, § 5.1) to conclude that the Handwritten Instructions’ “precatory” language displaced the Trust Amendment‘s directive language.6 But that conclusion rests on a faulty premise: that these instruments are incompatible. Absent a material inconsistency, the court had no occasion to invoke the inconsistency-resolution clause or to subordinate the Trust Amendment to the Handwritten Instructions.
In our view, these documents unequivocally demonstrate that Patricia intended to implement the use directives as mandatory instructions upon penalty of forfeiture.
We acknowledge that the two instruments are not identical. However, none of these distinctions concern the mandatory versus precatory character of the use directives, which is the only inconsistency upon which the court relied to import precatory meaning into the directives.
First, the two instruments describe Deniece‘s interest in the residence differently. Section 5.1(C) grants Deniece “the use of my house and guest house at my death until she is no longer able,” while the Handwritten Instruction provides, “I want my daughter, Deniece, to have my home and guesthouse.” But the residence provision is not part of the use directives governing the Ranch fields, and its construction does not bear upon whether the use directives are mandatory or precatory.
Second, the two instruments contain distinct penalty provisions. Section 5.1(D) voids a noncomplying sibling‘s interest for failure to comply with the use directives. The Handwritten Instructions reduces a contesting sibling‘s inheritance to $1 if that sibling contests Patricia‘s “will and wishes.” A compliance-based forfeiture and a no contest clause are different instruments that serve different ends, and they operate in tandem rather than in conflict.
Dispensing with the Trust Amendment in favor of the Handwritten Instructions when there is no significant conflict between their terms is problematic for another reason.
We conclude that the Trust Amendment and Handwritten Instructions do not conflict as to their relevant operative terms. Taken together, they establish that Patricia intended the use directives to be legal rather than moral obligations. Having established that the directives set forth in the Trust Amendment and buttressed by the Handwritten Instructions were mandatory, the next question is their legal character.
3. The Trust Amendment Created a Condition Subsequent Subject to Enforcement by Forfeiture
Three components of the Trust Amendment operate together to create a single integrated condition subsequent, subject to enforcement by a forfeiture penalty.
First, section 5.2 creates the property interest conveyed. That provision directs distribution of Patricia‘s 25 percent interest in the Ranch to her three children in equal
Second, section 5.1 imposes use directives governing Patricia‘s gift. This provision begins with the following preface: ”Notwithstanding the legal vesting of the various properties at my death, it is my direction and instruction that my children continue to operate the family ranches as follows.” (Italics added.) The word “Notwithstanding” is significant as it carries a settled legal meaning. The provision it introduces controls despite any competing provision to which it refers. (See generally California Taxpayers Action Network v. Taber Construction, Inc. (2017) 12 Cal.App.5th 115, 130 [” ‘[t]he ordinary meaning of the word “notwithstanding” is “in spite of” ’ “].) Patricia‘s instruction that the siblings continue to operate the Ranch “[n]otwithstanding the legal vesting” signals that section 5.1 was intended to operate despite section 5.2‘s otherwise unrestricted “free of trust” distribution.
The use directives that follow are correspondingly specific. Patricia assigned Price the use of the Calf pasture, Rushing Mt., Pipeline field, Bull field, and mountain property, while Lee and Deniece were to use the Ford, Mann, Hospital, Barn, Ceasar, and Steer fields. The Amendment further directs that the Ranch be used “as currently used,” and “as it is used and divided at the present time.” A settlor intending merely to express a nonbinding wish does not ordinarily write, “Notwithstanding the legal vesting.” That language only makes sense if Patricia intended the use directives to qualify the otherwise unrestricted vesting that section 5.2 would have accomplished standing alone.
Third, section 5.1(D) provides an enforcement mechanism that any noncomplying sibling‘s share of Patricia‘s gift “shall become void” and that sibling “shall forfeit” all
“A condition subsequent is one referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition.” (
A condition subsequent, particularly one with a forfeiture penalty, is disfavored because they destroy vested estates. (Hawley v. Kafitz, supra, 148 Cal. at p. 394; Cleary v. Folger (1890) 84 Cal. 316, 321 [” ‘Forfeitures ... are not favored by the courts....’ “], overruled on other grounds by Newton v. Hull (1891) 90 Cal. 487, 492;
Characterizing the use directives as a condition subsequent raises another question: How could such conditions operate against beneficiaries who already possessed substantial cotenancy interests in the Ranch? For the reasons discussed below, we find tension between these two interests.
4. The Use Directives are in Tension with the Sibling‘s Preexisting Cotenancy Interests
Each sibling‘s 33.33 percent cotenancy interest in the Ranch derives from two distinct sources: 25 percent was inherited directly from Louis and Melba through the Price Trusts, and was distributed in fee, unrestricted, while the remaining 8.33 percent was distributed through the Trust Amendment and is the only portion subject to section 5.1‘s use directives.7
At distribution, however, the siblings acquired a single undivided possessory estate in the Ranch as tenants in common. Section 5.2 distributed Patricia‘s interest “free of trust” in equal shares to the siblings. Under
Each sibling therefore holds, at present, a 33.33 percent tenancy-in-common interest derived from two distinct sources but exercised through undivided rights of possession in the whole property. California law is clear that tenants in common each possess the right to occupy and use the entirety of the property, not any physically segregated portion of it. (
Cotenants may, however, contract among themselves to give each an exclusive right of use or occupancy in a designated portion of the property, without altering the undivided character of their interests. (See Bakanauskas v. Urdan (1988) 206 Cal.App.3d 621, 628-630; Tom v. City and County of San Francisco (2004) 120 Cal.App.4th 674, 677 [tenants in common may “make agreements among themselves, to give each owner an exclusive right of occupancy“]; accord, 86 C.J.S. Tenancy in Common, § 100 [“an agreement between tenants in common giving one the
Because such an agreement governs possessory use, rather than title, breach is redressable through ordinary remedies between cotenants, not forfeiture of title. An aggrieved cotenant may, for example, pursue remedies such as damages, injunctive relief, and an equitable accounting. (See Zaslow, supra, 29 Cal.2d at p. 548 [discussing remedies for ouster of a cotenant, including the right “to recover common possession of the premises and damages for loss of use“]; Hunter v. Schultz (1966) 240 Cal.App.2d 24, 30-31 [reasonable value of an occupying cotenant‘s use may be offset against contribution in an equitable accounting]; 16 Cal.Jur.3d Cotenancy and Joint Ownership, § 63 [discussing remedies available against violating cotenant].) But generally, forfeiture of title is not an available remedy against the breaching cotenant.
In the absence of such an agreement, however, the default rule governs, and no cotenant may exclude another from any part of the property. (Tom v. City and County of San Francisco, supra, 120 Cal.App.4th at p. 677; Zaslow, supra, 29 Cal.2d at p. 548; Krum v. Malloy (1943) 22 Cal.2d 132, 135.) Because all cotenants share the right to possess the whole property, no one of them owns any specific portion of it by themselves. (Wood v. Henley (1928) 88 Cal.App. 441, 452 [“the cotenants hold the common land by unity of possession, for which reason there can be no specific or determinate portion of the common land which any one of such tenants can claim as his in severalty“].)
Here, the siblings never executed a formal use agreement. Although the siblings accepted Patricia‘s gifted interest, acceptance of a testamentary transfer does not, by itself, establish assent to a broader sibling agreement governing the Ranch. Absent evidence of mutual assent, acceptance of the distribution reflects acquiescence to Patricia‘s transfer, not necessarily agreement to be legally bound by an ongoing use
The resulting structure is difficult to reconcile. Patricia sought to condition her fractional interest, yet each sibling‘s preexisting possessory rights arose from an unrestricted cotenancy interest she did not control. Even assuming the Trust Amendment provided a workable means of enforcing the use restrictions against siblings who independently retained lawful rights to occupy the entire Ranch, the conditions set forth by Patricia by penalty of forfeiture are not.
As we explain below, the forfeiture penalty as well as the lack of specificity of the conditions set forth in the Trust Amendment and Handwritten Instructions present independent enforceability problems.
5. The Use Directives Enforceable by Forfeiture Are an Indirect Restraint on Alienation
In part III.C.3, ante, we considered the nature of the interest was created by the Trust Amendment and Handwritten Instructions, finding these instruments created a fee
We now address whether the forfeiture-backed directives, though framed as restrictions on use of the Ranch, function in practice as an indirect restraint on alienation.
” ‘The traditional rule against restraints on alienation is based on the public policy notion that the free alienability of property fosters economic and commercial development.’ ” (Tufeld Corp. v. Beverly Hills Gateway, L.P. (2022) 86 Cal.App.5th 12, 23; ibid., citing
A restraint on alienation may be direct or indirect. ” ‘A direct restraint on alienation is a provision in a deed, will, contract or other instrument which, by its express terms, or by implication of fact, purports to prohibit or penalize the exercise of the power of alienation.’ ” (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 369 (Carma Developers).) An ” ‘indirect restraint on alienation arises when an attempt is made to accomplish some purpose other than the restraint of alienability, but with the incidental result that the instrument, if valid, would restrain practical alienability.... Ordinarily an indirect restraint does not restrict the power of alienation but only the fact of alienability.’ ” (Ibid.)
Use restrictions enforced by forfeiture are indirect restraints because they limit the possible uses of property and render it less marketable. Both direct and indirect restraints are subject to the same reasonableness analysis under
“[Civil Code] [s]ection 711 only invalidates unreasonable restraints on alienation.” (Godoy, supra, 106 Cal.App.5th at p. 779.) ” ‘Reasonableness is determined by comparing the justification for a particular restraint on alienation with the quantum of restraint actually imposed by it. “[T]he greater the quantum of restraint that results from enforcement of a given clause, the greater must be the justification for that enforcement.” ’ ” (Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1059.)
Godoy is illustrative. There, the settlor amended her revocable trust to leave her house to her three children as tenants in common. (Godoy, supra, 106 Cal.App.5th at p. 771.) The amendment expressed the settlor‘s wish that the home stay in the family with “no outsiders,” directed that any child wishing to sell could sell only to the other children for $100,000, and included a no contest clause penalizing any child who challenged the arrangement. (Ibid.) The settlor‘s purposes were straightforward: she wanted to preserve the home for her family across generations. (Id. at p. 779.)
After the settlor‘s death, two of the children petitioned for a determination of the amendment‘s validity. (Godoy, supra, 106 Cal.App.5th at p. 772.) The court found the restrictions were mandatory rather than precatory, but nonetheless an unreasonable restraint on alienation, and declared the amendment void. (Ibid.)
On review, the appellate court weighed the settlor‘s justification—specifically, the desire to keep the home in the family—against the quantum of restraint imposed. The court found that even assuming the justification was legitimate, it was insufficient to overcome the substantial marketability harms the restrictions created. The fixed sale price stripped the beneficiaries of hundreds of thousands of dollars in market value if they
Not all forfeiture-backed restrictions affecting property use constitute an unreasonable restraint on alienation. California law distinguishes between restraints that regulate transferability and conditions that merely regulate the manner in which land may be used. Although a land use restriction may incidentally burden marketability, it may nonetheless remain enforceable where it functions as a genuine use restriction rather than a mechanism which, in practical effect, restricts alienation.
Mountain Brow Lodge No. 82, Independent Order of Odd Fellows v. Toscano (1967) 257 Cal.App.2d 22 at page 23 (Mountain Brow Lodge) illustrates the distinction. There, the court considered whether certain conditions in a gift deed to an Odd Fellows lodge amounted to an unreasonable restraint on alienation. The deed stated the property was “restricted for the use and benefit” of the lodge only, and if the property stopped being used as a lodge or if the lodge was sold or transferred, the property would revert to the grantors or their heirs. The court severed the deed into two components. The transfer restriction was void as a direct restraint on alienation. (Id. at pp. 24, 26.) The use restriction, however, was held enforceable as a fee simple subject to a condition subsequent, on the principle that “conditions restricting land use have been upheld by the California courts on numerous occasions even though they hamper, and often completely impede, alienation.” (Id. at pp. 25-26.)
Patricia‘s use directives, enforced by forfeiture, are framed as instructions governing how the Ranch should be used. They do not contain any direct restriction on transfer. In practical operation, however, they function to keep the Ranch within
As in Godoy, Patricia distributed property to multiple family members as tenants in common while attempting to preserve family control of the property across generations. In Godoy, the settlor used a family-only sale mechanism backed by a no contest clause. (Godoy, supra, 106 Cal.App.5th at pp. 771, 779.) Here, Patricia used forfeiture-backed use directives. The mechanism differs, but the practical objective is the same—to deter transfer outside the family and preserve the property according to the settlor‘s wishes.
The settlors’ justifications are also identical. In Godoy, the settlor sought to ensure the home was kept in the family. (Godoy, supra, 106 Cal.App.5th at pp. 770-771.) Similarly, Patricia expressed her desire that the Ranch, which had been in “[her] family for over one hundred (100) years” continue to be used (and divided) as it had been during her lifetime. The justifications track Godoy‘s in substance.
The quantum of restraint is also comparable. In Godoy, the amendment permitted intrafamily transfers, albeit at a below market value price. (Godoy, supra, 106 Cal.App.5th at p. 779.) The Trust Amendment here contains no analogous provision. There is no permitted sale at any price; no consent-to-sell provision; no buy-out mechanism; and no temporal limit on the use restriction, other than the death of the sibling-beneficiary. A sibling contemplating sale has no pathway to effectuate a transfer free of exposure to forfeiture.
The impact on marketability confirms this. A prospective buyer of any sibling‘s cotenancy interest faces the seller‘s presale risk of forfeiture, continuing use obligations
We conclude that under Godoy, the Trust Amendment fails as an unreasonable restraint on alienation. Patricia‘s intent to preserve the Ranch, which had been in her family for generations, is arguably a legitimate justification. (Godoy, supra, 106 Cal.App.5th at p. 779 [assuming without deciding that the settlor‘s justification of keeping the home within the family was a legitimate justification].) However, the quantum of restraint is substantial relative to Patricia‘s justification.
Although Mountain Brow Lodge confirms that some forfeiture-backed use restrictions may survive scrutiny, the use directives here are functionally different. There, the grantee held the entire interest in a discrete parcel, and breach of the use condition triggered reversion of the entire interest in that parcel. The breaching party lost both ownership and possession of the parcel. (Mountain Brow Lodge, supra, 257 Cal.App.2d at pp. 23-24.) The forfeiture mechanism thus accomplished what the use restriction required by ensuring that an owner which ceased operating the property as a lodge would not retain the property.
The forfeiture mechanism here does not operate that way. It reaches only the 8.33 percent interest Patricia conveyed. A sibling who breaches the use directives forfeits Patricia‘s gift but retains the 25 percent preexisting interest from Louis and Melba with full cotenancy possessory rights to the entire ranch. The penalty cannot prevent any alleged prohibited use. It can only reduce the violator‘s ownership interest share after the fact, while the violator continues to enjoy a coequal right to occupy and use the land.
The severance framework in Mountain Brow Lodge is unworkable here for a second reason. The deed in Mountain Brow contained two structurally independent provisions, each with a complete condition subsequent with its own triggering event and its own divestment consequence. First, cessation of lodge use triggered reversion.
But the Trust Amendment here has no comparable structure. It contains a single condition subsequent: use of the designated fields subject to forfeiture for noncompliance. This represents one integrated condition, and neither half functions on its own. Without forfeiture, the use directives are simply a description of conduct Patricia would have preferred. (See Rest.2d Trusts, § 11, com. a, p. 32 [a condition subsequent is characterized by the provision that if the transferee should fail to perform a specified act his interest should be forfeited].) Without the use directives, the forfeiture provision has nothing to which it can attach.
Severing the forfeiture mechanism from the use directives therefore does not produce a use restriction that can survive on its own. It produces no enforceable obligation at all. The directives operate as a condition subsequent—the same category as the use restriction upheld in Mountain Brow Lodge. However, without the forfeiture penalty, they are not conditions subsequent at all. The forfeiture penalty is the only enforcement consequence available, and without it, the directives are unenforceable.
More importantly, however, we are not persuaded that the use directives are sufficiently clear to inform the parties of their obligations. Our analysis is fully detailed below.
6. The Use Directives are Impermissibly Vague
The use directives under the Trust Amendment and the Handwritten Instructions require the siblings to:
- “continue to operate the family ranches“;
- “continue using” designated fields “as currently used“; and,
- the Ranch “continue to be used as it is used and divided at the present time by [the siblings]” prior to Patricia‘s death.
We conclude that the imprecision of the conditions crafted by Patricia render them unenforceable. We examine each of the conditions below:
a. “Operate the family ranches”
The first condition, requiring the beneficiaries to “operate the family ranches,” fails to specify whether the obligation requires personal operation by the beneficiary, operation through a hired manager, or operation through a third-party lessee. Consequently, a beneficiary who leases property to a third-party ranch operator might believe she is “operating the family ranch” because the property continues to be used for cattle ranching under her ownership. A nonleasing cotenant might argue that a leasing cotenant has ceased “operating” because the latter no longer personally engages in the ranching activity. The directive does not resolve the dispute.
b. “As currently used”
The phrase “as currently used” references a state of affairs that is not tied to a specific temporal baseline. The possible baselines include: The use of the fields at the time the Handwritten Instructions was signed in 2014, the Trust Amendment‘s execution in 2015, the use of the fields at the time of Patricia‘s death in 2016. This materially affects what constitutes compliance.
For example, assume Lee grazed cattle on one of his fields in 2015, then leased the field to a third party in 2016. Measured against 2015, the lease departs from the use “as
c. “As [the Ranch] is divided at the present time by [the siblings]”
This phrase presupposed that there was a specific division of fields and use among the siblings at the time the Trust Amendment was executed. But the siblings shared an undivided cotenancy in the whole property at the time of the Trust Amendment. What looked like a “division” was actually an informal pattern of use, not a legal allocation of property rights. The directive‘s attempt to make this informal pattern enforceable runs into the structural problem that the cotenancy framework does not permit exclusive use rights, and Patricia did not effect the formal partition that would have created separately owned parcels capable of being subject to use conditions in the way the use directive contemplates.
Based on the foregoing, we conclude that the use directives fail to provide the degree of certainty necessary for judicial enforcement. While all trust instruments require a degree of interpretation, the operative obligations here are too indefinite to provide an ascertainable standard by which a court could determine compliance, breach, or an appropriate remedy. Because the use directives fail to articulate definite obligations, we conclude they are unenforceable.
DISPOSITION
The probate court‘s order is affirmed. Deniece and Price are entitled to recover their costs on appeal. (
DE SANTOS, J.
WE CONCUR:
LEVY, Acting P. J.
SNAUFFER, J.
Notes
The Trust Amendment provides:
“7.2 Amendment. The Settlor may at any time during the Settlor‘s lifetime, amend any of the terms of this instrument by a written instrument executed by the settlor and delivered personally or by certified mail to the Trustee. No amendment shall substantially increase the duties or liabilities of the Trustee or change the Trustee‘s compensation without the Trustee‘s consent, nor shall the Trustee be obligated to act under such an amendment unless the Trustee accepts it.”
Article XI, section 11.7 of the Trust provides: “As used in this instrument, the masculine, feminine or neuter gender and the singular or plural number, shall each include the others whenever the context so indicates.” (Italics added.)
Read together, these provisions require that the term “Trustee” in article VII, section 7.2 be construed to include multiple trustees where the context so indicates.