Estate of ANGELA L. MARRE, Deceased. STEPHEN MILTON PIUMA, Respondent,
v.
HENRY L. MINETTI et al., Trustees, etc., Appellants.
Supreme Court of California. In Bank.
Dockweiler & Dockweiler for Appellants.
Canepa & Castruccio and Horace W. Danforth for Respondent.
Andrew F. Burke, as Amicus Curiae, on behalf of Respondent.
GIBSON, C.J.
This appeal is brought from an order of the Superior Court of San Luis Obispo County in a probate proceeding. The order directed appellants, as trustees under a testamentary trust, to make further payments to thе respondent beneficiary, Stephen M. Piuma, covering the period between decedent's death and the entry of the decree of final distribution. The decedent bequeathed and devised the residue of her estate to appellants in trust. The will provided in part: "(d) Said trustees shall during the existence of said trust, either monthly, quarterly or semiannually, as the circumstances and conditions of said trust estate will the most conveniently permit, but in any event annually, distribute *186 and pay out of the net income of said trust estate such part thereof as said trustees shall in their sole judgment deem advisable to or for the proper care, maintenance, support and education of my said grandson Stephen Milton Piuma so long as, in their sole judgment, his education is incomplete, and the balance, if аny, of said net income to my daughter Rosa J. Marre Piuma. ..." Decedent died June 14, 1933, and the decree of distribution was rendered on December 21, 1937. At the time of decedent's death the respondent, Stephen M. Piuma, was not yet eighteen years of age and was still a student in high sсhool. In September, 1934, he entered the University of Southern California, where he remained for one scholastic year, and in August, 1935, he entered the University of Santa Clara where he was a student on March 6, 1939, when the petition here involved was filed. The petitioner аsked that the court instruct the trustees to make certain payments to reimburse him for expenses incurred for support, maintenance and education during the period prior to the entry of the decree of final distribution. The superior court granted the petition in part, and ordered the appellants to make payments totaling $650.00 for expenses incurred by the beneficiary during the years 1935, 1936, and 1937. It is from this order that the present appeal was taken.
[1] Appellants urge that the order made in favor of the beneficiary is void because the superior court, sitting in probate, has no jurisdiction over such a petition. It is pointed out that the probate jurisdiction of the superior court is statutory in nature, and is strictly limited by the terms of the statute conferring such jurisdiction. (Estate of Davis,
This contention is disposed of by the decision in Estate of Smith,
[2] Appellants also contend that even if the court acted within its probate jurisdiction, the order directing payment to the beneficiary for the period prior to the decree of distribution is erroneous. Ordinarily, it is said, the beneficiary has no right to receive payments under the terms of the trust instrument until the trust property is distributed to the trustees. An order directing payments covering the period prior to the decree of distribution is said to be improper unless the will contains an express direction that the payments are to accrue from the date of the testatrix' death, or unless a similar result is reached under established principles for ascertaining the testator's intent as, for example, by the creation of an annuity under Probate Code, sec. 162. That section provides: "Legacies are due and deliverable one year after the testator's death and bear interest from that time, except *188 that legacies for maintenance or to the testator's widow bear interest from the testator's death. Annuities commence at the testator's death." After pointing out that the will in this case contains no express direction, the appellant trustees devote their briefs to the proposition that the testamentary disposition involved here did not create an annuity, citing Clayes v. Nutter,
[3a] The absence of an express direction that the payments were to accrue from the date of her death does not establish conclusively, however, that the testatrix had no such intent. The intention of the testatrix is the determining factor (Probate Code, sec. 163), and that intent is to be gathered from the instrument as а whole. (Prob. Code, 103; Estate of Peabody,
[4] The holding in Estate of Dare is based upon an analogy to the common-law doctrine according special consideration to legacies for support and maintenance. Thus, although it was well established at common law, where no directions were given by the testator, that legacies were payable one year after the testator's deаth and bore interest from that date, legacies for support and maintenance accrued at the date of the testator's death and bore interest from that time. (Cooke v. Meeker,
[5] It is true that during the administration of the estate, and prior to the distribution of the trust property to appellants, the beneficiary could not have brought action to compel payment against either the trustees or the executors of the estate. (In re Mackay, supra; Estate of Dare, supra.) The exеcutors were under no duty to make payments and the trustees could not be compelled to make payment prior to the distribution of the trust property to them. The beneficiary's remedy during that period is confined to asking the probate court to distribute a рortion of the trust funds to the trustees to be used for his support. (See In re Mackay, supra, p. 307; Estate of McGirl, supra, p. 313.) The rule preventing suit during this period relates to the time at which the trustees may be compelled to make actual payment, however, rather than to the date at which the right to support commenced. Thus, after the property was distributed to the trustees, payment should have been made for the respondent's support and maintenance commencing from the date of testatrix' death.
[6] The amоunt to be paid for the beneficiary's support, however, was to be determined in the sole judgment of the trustees. The order of the superior court sought to specify the exact amount of the payments to be made to the beneficiary. It is well settled that thе courts will not attempt to exercise discretion which has been confided to a trustee unless it is clear that the trustee has abused his discretion in some manner. (Hallinan v. Hearst,
The order appealed from should be modified tо direct that the trustees determine, in their discretion, the amounts necessary for respondent's maintenance during the period commencing with the death of the testatrix and until the entry of the decree of distribution. The trial court is directed to so modify the order, and when so modified, the order will stand affirmed, costs upon this appeal to be borne by appellants.
Shenk, J., Edmonds, J., Traynor, J., and Carter J., concurred.