195 P. 944 | Cal. Ct. App. | 1920
Plaintiffs appeal from a judgment entered after a demurrer to the second amended complaint was sustained without leave to amend.
By their suit plaintiffs seek to terminate a trust created by the will of their deceased mother, Henrietta C. Woestman, in which the defendant is named as trustee. The relief is sought on two grounds: (1) That the trust was void in its inception because attempted to be created in violation of the statute prohibiting perpetuities; and (2) that all the parties in interest consent to its termination.
The provision of the will necessary to be considered reads as follows: "Sixth: I give and devise, and bequeath all of the rest, residue and remainder of my estate, real, personal and mixed, wherever situated, of which I may die seized or possessed, or to which I may be entitled at the time of my decease, to my two boys, Walter E. Woestman and Karl O. Woestman, share and share alike, or if either should die without issue, then to the other, the same, however, to be held in trust by the 'Union Trust and Savings Bank of Pasadena,' a corporation, created and existing under the laws of the state of California, having its principal office in the city of Pasadena, county of Los Angeles, in said state, until my said boys reach the age of forty years. And I authorize my trustee to pay out of the said trust above created, to each of my said boys, the sum of fifty dollars ($50.00) per month, during the life of said trust."
In due course a decree of distribution was entered, containing the following clause: " . . . and all the rest of *606 the property of said estate is distributed to The Union Trust and Savings Bank of Pasadena, as trustee, upon the trusts stated and declared in the will of said Henrietta C. Woestman, deceased, which will is on file and of record in the office of the clerk of this Superior Court."
The complaint alleges that, at the time of the distribution of the estate, plaintiffs were minors, and were not represented in the proceedings by counsel, but relied upon the defendant, the executor of their mother's will, to protect their interests, and that the defendant did not advise them of the invalidity of the trust attempted to be created by the will, but, on the contrary, informed them that it was a valid trust, and that the property should be distributed to the defendant as trustee. It further is alleged that on the hearing of the petition for distribution defendant's counsel represented to the judge that the will created a valid trust, and thereby induced the court to enter the decree under the influence of a mistake in law affecting the court, the defendant and its attorney. Pursuant to the decree there was distributed to the defendant, as trustee, personal property to the value of about one hundred and eighty thousand dollars.
The plaintiffs are, respectively, twenty-three and twenty-one years of age, in poor health and unable to support themselves and their families according to their station in life, and the allowance of fifty dollars per month from the trust is insufficient for their needs. Both claim to be fully capable of managing their shares of the estate without the intervention of a trustee, being of sound mind, good habits, and not spendthrifts, and are desirous of embarking in business while young, to familiarize themselves with the handling of their own money during the formative period of their business careers. At the time of the commencement of this action the accumulations of the income over and above the corpus of the trust estate, after deducting the expenses of administering the trust and the allowance to plaintiffs, amounted to eighteen thousand dollars, which is now in the possession of the trustee, and, according to the allegations of the complaint, could be paid to the beneficiaries without detriment to the estate, and greatly to the benefit of plaintiffs.
[1] 1. Appellants contend that the trust was void in its inception because it illegally suspended the power of alienation *607
for an absolute period of years, in contravention of the provisions of section
[2] 2. A court of equity may terminate a trust, prior to the expiration of the time fixed for its duration, when all the parties in interest are sui juris and join in a request for its dissolution, unless the trustor has placed an express limitation upon this power, or the trustee is vested with discretion as to the amount of income to be devoted to the use of the beneficiary, or a valid direction for accumulation is contained in the instrument creating the trust. (Fletcher v.Los Angeles Trust Sav. Bank,
There is no express direction as to the disposition of the share of a decedent leaving issue. We must, perforce, endeavor to ascertain from the contents of the will what purpose actuated the mind of the trustor in inserting the provision with reference to issue. Obviously, she did not contemplate that the portion of a deceased son should lodge outside of his family, if any children survived him. In whose favor, then, was the limitation made? The natural and logical inference, we think, must necessarily be that it was made for the benefit of those whom the testator mentioned, namely, the issue. The specific reference to issue would imply an intention to provide for them in the event of their father's death. (Hull v. Holmes,
[4] 3. Plaintiffs demand that the income of the corpus of the trust be paid to them, claiming that the accumulation beyond their majority is illegal. There is no provision whatever in the will for the accumulation of income. All that is disposed of by its terms is the allowance of fifty dollars per month to each of the boys. The excess, therefore, would come within the provisions of section
The judgment is reversed, with permission to the plaintiffs to amend their complaint, if so advised, to state a cause of action solely for the recovery of the accumulated income.
Finlayson, P. J., and Thomas, J., concurred.