246 P. 48 | Cal. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *354 This appeal is from a judgment and decree of final distribution in the matter of the administration of the above estate and in the course of probate of the last will and testament of Emily Pixley Shaw, deceased. The decedent died testate in the county of San Joaquin, state of California, on or about June 5, 1921, leaving an estate mainly, if not wholly, situate in said county, amounting in value to approximately one hundred and fifteen thousand dollars, and consisting almost entirely in money and personal property in the form of notes, stocks, and bonds. The terms of her last will and testament which have direct reference to her disposition of her said estate are those which read as follows: *355
"Thirdly: I give, devise and bequeath unto my adopted daughter, Catherine Gray Peterson, formerly Catherine Gray Shaw, and now the wife of Fred A. Peterson, of Santa Cruz, California, a life interest in and to one-half of the rest, residue and remainder of my estate after my debts are all paid, the income on said life estate to be paid quarterly to her by my executors, promptly on the first day of each and every quarter during the term of her natural life; and the remainder-in-fee interest in and to the same, upon the death of said Catherine Gray Peterson, is to go to and become the property of her daughter, Helen Peterson Lightfoot, and in case of the death of said person last mentioned, to Catherine Lightfoot, the daughter of said Helen Peterson Lightfoot.
"The interest of the said Catherine Gray Peterson herein devised is a life interest only, and not an interest in fee simple.
"Fourthly: I give, devise and bequeath unto Helen Peterson Lightfoot, daughter of said Catherine Gray Peterson, an undivided one-half interest in and to all the rest, residue and remainder of my estate, to hold and enjoy the same for the term of her natural life, and no longer: and at her death, the remainder-in-fee interest in and to the same is to go to and become the property of her daughter, Catherine Lightfoot.
"The said Helen Peterson Lightfoot is to receive the income on said undivided one-half rest, residue and remainder of my said estate, quarterly, the same to be paid to her by my executors promptly on the first day of each and every quarter during the term of her natural life.
"The interest herein devised to said Helen Peterson Lightfoot is a life interest only, and not an interest in fee simple.
"I desire that all of the debts, charges and expenses of administration of my estate, and all the expenses of my last illness and funeral expenses, be paid in full before said estate be distributed, and before said shares go to the respective devisees mentioned herein.
"Lastly: I hereby nominate and appoint J.B. Cory and W.H. Lorenz the executors of this, my last will and testament, to serve without bonds being required of them, or either of them, and I hereby revoke all former wills by me *356 made; and I request that no bonds shall be required of the successors in office of my said executors, or either or any of them.
"I hereby direct that my executors, if they deem it advisable and for the best interest of my estate and for all concerned, to cause all of the real and personal property of my estate to be sold and converted into cash, and that after all necessary legal disbursements have been made in the administration of said estate, that the funds of said estate be kept on deposit in the First National Bank of Lodi and in the Central Savings Bank of Lodi, and that during the lives respectively of said life tenants, mentioned herein, said funds, and all funds in my estate, remain in said banks.
"I further hereby appoint as the successor of either or both of my executors, in case of their deaths, their successors, respectively, in office as president and secretary, or either or both, of the said First National Bank of Lodi; it being my wish, will and intent that my estate shall be managed and handled by the president and secretary of the said First National Bank of Lodi, and in case of the death of either of them, that his successor in such case shall take the place of such present executor — that is to say, in case of the death of said J.B. Cory that his successor as president of said bank shall serve as one of my executors, and in case of the death of W.H. Lorenz, that his successor as secretary of said bank shall serve as one of my executors."
The questions which are presented upon this appeal involve the interpretation to be placed upon the foregoing provisions of the decedent's last will and testament. The trial court upon the petition for distribution of the decedent's estate pursuant to the said terms of her last will and testament, and upon the opposition thereto presented by Catherine Gray Peterson and Helen Peterson Lightfoot, the two devisees of life interests in said estate under said will, made certain findings of fact and conclusions of law upon which the said court predicated the judgment and decree appealed from. The above-named devisees of life interests under said will, and each of them, appealed from said judgment and decree, but subsequently thereto the appeal was, by the district court of appeal in which the *357 matter was then pending, dismissed as to the appellant Helen Peterson Lightfoot without prejudice to the appeal of the other appellant. The remaining appellant assails upon this appeal certain of the findings of fact and conclusions of law of the trial court wherein the latter in interpreting the provisions of the last will and testament of said decedent above set forth determined that said decedent had by the foregoing terms of her said will devised to each of said appellants a life interest in the income only of the properties of her said estate; and as to the corpus thereof had created a trust and had invested the executors named therein with the powers and functions of trustees and with the right to have distributed to themselves as such the said corpus of said estate and to hold the same as such during the lifetime of said appellants, and each of them, for the purposes declared in said will. We are asked to review and reverse the findings, conclusions, and decree of the trial court in the foregoing regard.
The primary question presented for our consideration is as to whether the testratrix intended by the foregoing terms of her last will to invest the two persons who are named therein as being each entitled to a life interest in an undivided one-half of her said estate, with such right to the possession and control of her respective proportion of said properties as to entitle each of said persons to have the same distributed directly to her in lifetime under the decree of final distribution of said estate. In determining this question it is conceded by both the appellant and the respondents herein that we are to look to the entire body of the decedent's said last will and to give effect, if possible, to every portion thereof. The appellant, however, argues and cites authority for her insistence that when a will contains clear and unequivocal gifts of life estates, the vesting of such estates will not be limited or controlled by later and doubtful clauses in the will relating to the management of the properties thus devised or of the income thereof. There can be no doubt as to the correctness of this rule, since it is embodied in section 1322 of the Civil Code, but conceding that the rule would be as appellant states it in respect to an appropriate situation, we are satisfied that it cannot be given application to the instant case for the reason that the testatrix by the very terms of her devise *358
of the life interests in question has embodied her intended limitation upon the right of the devisees thereof to the possession and control thereof during the life of the term thereof. In the immediate context wherein the testatrix devised the so-called life interest in the undivided one-half of her estate to each of said devisees she limited the extent of the domination, receipt, possession, and control of the interest thus devised to the income thereon in each instance; and in other parts of her said will by words equally clear and distinct reposed the exclusive domination and control over and possession of the corpus of each of said undivided and indivisible portions of her said properties and estate in persons other than the aforesaid devisees, during the entire life of each of them and of the term of their interest in said properties and estate. It is to be noted as of prime significance in this connection that the properties of said testatrix consisted almost wholly of personal property, together with her small holding of real estate, which the executors of her said will were given discretion to turn into money, retaining the corpus thereof, and delivering the income thereof only to said devisees during their lives. To properties of this character the terms "life estate" and "life tenants" could have only a limited significance; and since the whole of the corpus was devised in remainder, the chief value to the devisees of a life interest therein consisted in their right to the income or usufruct thereof. Reading the will thus as a whole and finding no doubt or uncertainty as to the foregoing terms thereof we therefore arrive at the conclusion that the only life interest with which the testatrix intended these particular devisees to be invested was thus declared to be a life interest in the income of her said properties and estate. The cases to which we are referred by the appellant as supporting her interpretation of the terms of this will do not go to the extent of requiring us to uphold that interpretation. In Estate of Pforr,
The next question presented for our consideration is as to whether the trial court was justified by the terms of the decedent's will in distributing the entire corpus of her estate to the executors named in her said will and to their successors to be selected in the manner designated therein as trustees of an express trust for the purposes and period designated in the last will of said decedent. It is urged by the appellant herein that the said will of said decedent does not create a trust in said persons or in the successors of them for the reason that there is no mention or use of the words "trust" or "trustee" in said will, nor are there any appropriate words therein indicating an intent to create a *360
trust. As to the use of the words "trust" or "trustee" in an instrument it has been frequently held that there is no magic in mere words of this character and that the question as to whether or not a trust has been created by such instrument depends rather upon the powers and duties with which the persons named therein have been invested, than upon the titles bestowed upon them or the terms employed in defining the nature and extent of their estate. The rule in this regard is perhaps most clearly stated in the case of Colton v. Colton,
The appellant herein, however, insists that the trust thus sought to be created is void for the following several reasons: First, that said trust is a so-called "dry trust." The term "dry trust" refers to a trust wherein the trustees would have no actual responsibilities as such and no active duties to perform. But this trust is not of that character but is rather of the character referred to in the case of Gray v. Union TrustCo.,
The judgment and decree are therefore affirmed, the respondents to recover their costs herein, to be paid out of the assets of said estate.
Seawell, J., Shenk, J., Lennon, J., Waste, C.J., Curtis, J., and Lawlor, J., concurred.
Rehearing denied.