52 Cal. App. 2d 293 | Cal. Ct. App. | 1942
Janie M. Osgood died testate in Los Angeles. In due time her will was admitted to probate. The decedent left her surviving one heir, a son, Alfred J. Osgood. By the terms of said will the decedent left all of her estate to Eliza A. Osgood in trust for said son, A. J. Osgood. The trust was in form a spendthrift trust. The will named Eliza A. Osgood, wife of decedent’s son, as executrix of said will and as trustee of said trust.
On September 21, 1939, Eliza A. Osgood, as executrix, filed her second and final account, report, and petition for distribution. In form it was regular and complete in all respects. However, Maggie A. Hoff filed objections and exceptions to said account and petition. In that pleading she alleged that on December 19, 1934, judgment was entered in her favor against A. J. Osgood for $5,716.70; that on April 16, 1935, she caused execution to be issued and served on all the right, title, claim and interest of defendant A. J. Osgood in
In said order dated March 21, 1941, said court overruled the objections of Maggie A. Hoff, ordered the said account to be settled, and ordered a decree of distribution to be entered as prayed in said petition. From the order so made, including the decree of distribution, the said Maggie A. Hoff has appealed under section 953a of the Code of Civil Procedure.
It will be noted that in her pleading the plaintiff made no claim the trust was invalid in any respect, and that the trial court made no findings on that subject. However, on the hearing, over the objection of the executrix, the plaintiff, subject to a motion to strike, introduced evidence to show the trust was invalid. The trial court made no ruling on the motion to strike.
But the plaintiff contends that the trust was invalid in part; and, she goes further and contends it was wholly invalid. Those contentions she predicates on her claim that the beneficiary placed certain of his properties in the hands of his mother, the trustor, and had her include such properties in the trust and said trust was to that extent invalid (McColgan v. Walter Magee, Inc., 172 Cal. 182 [155 Pac. 995, Ann. Cas. 1917 D, 1050]); that the conveyances were made by the beneficiary fraudulently to hinder and delay his creditors; and that the trust was wholly void because it violated the laws prohibiting certain restraints on alienation and perpetuities. Conceding that such contentions may be heard and determined by a court having jurisdiction thereof (McColgan v. Magee, Inc., supra), it does not follow that the probate court in the instant case had power to hear and determine said questions.
In the trial court such contentions were made. Over the objection of the executrix the plaintiff introduced some evidence subject to a motion to strike. Later that motion was made and taken under advisement, but was not expressly ruled on. As plaintiff had not alleged the facts she was not prejudiced by the omission. (2 Cal. Jur. 1024.) Moreover, as will presently appear, the objections should have been sustained.
Assuming, solely for the purposes of this decision, that under certain circumstances the trial court could have heard and determined such matters, it could not properly do so in the absence of pleadings alleging the facts. (Estate of
We findno error in the record. The order appealed from is affirmed. Nourse, P.
J., and Spence, J., concurred. [Civ. No.