Eldred v. Bank of America National Trust & Savings Ass'n
Eldred v. Bank of America National Trust & Savings Ass'n
Opinion of the Court
The objector, Joan B. Eldred, appeals from a judgment approving the first and final account and petition for distribution and ordering distribution to her of one-half interest in decedent’s estate by way of a trust; she claims no trust for her benefit was ever created and that she is entitled to her share free and clear of any restriction.
With the exception of a stipulation fixing the ages of appellant Joan and her brother, David, no testimony was
In article Fourth of the witnessed will decedent gave one-half of his residuary estate to Joan. Under article Fifth, decedent gave the remaining one-half of his estate to respondent bank in trust for David, from which he directed it to pay to David certain amounts for a college education and for medical care, maintenance, or support and education, the trust to end when he reaches the age of 21, at which time it shall be distributed to him.
Decedent directed the first codicil dated November 21, 1955, “to the Administrators of my Will,” and declared therein: “It is my Wish that My Grand Daughters [sic] share—Joan Eldred—of My Estate be Paid to Her in Monthly Instalments [sic] of $50.00 For each And every Month. In case of Her Death, I wish the Payments to continue to Her Children, If there Are Any. If She leavs [sic] No Children (Not By Adoption) What ever May be left of Her Share to Revert to My Estate.” In the second codicil dated November 1, 1956, addressed: “to the Judge of the Probate Court Ant [sic] the Exegetors [sic] of My Will,” and reciting that he loaned Joan $1,900 and advanced to her several hundred dollars as a gift and does “not wish to discriminate further, beteen [sic] My two Grand Children,” decedent provided that any unpaid part of the loan to Joan be deducted from her share. The third codicil dated January 30, 1957, addressed “to the Probate Court” with directions to “Attach to my Will,” declared decedent’s acquisition of a great-granddaughter, Vicki, and specifically provided that should Vicki survive her mother (Joan), Vicki shall inherit Joan’s share of his estate; and further, should David survive Vicki and Joan, he shall inherit Vicki’s share; should Joan or Vicki
Among other provisions, the judgment from which Joan appeals ordered an undivided one-half of the residuary estate, plus $950 (amount of the unpaid portion of the loan to Joan) held in trust, be set aside for David’s benefit and held and distributed according to certain directions by respondent trustees; and when David reaches 21 the balance shall be distributed by respondent to him. It further ordered the remaining undivided one-half of the residuary estate (minus $950) held in trust, be set aside for Joan’s benefit and the sum of $50 per month be paid therefrom to her, such payments to continue until David becomes 21 (provided that if Joan dies before David becomes 21, such share shall be held for, and the $50 payments be paid to, Vicki until David becomes 21), at which time the trust terminates and the corpus shall be distributed to whoever is receiving the $50 per month (provided that if appellant and Vicki shall die before David becomes 21, then the trust estate shall be added to that of David). If David dies before reaching 21 and neither appellant nor Vicki shall be living, Joan’s or Vicki’s share shall be distributed to decedent’s heirs at law. Joan appeals only from that portion of the judgment ordering her share of decedent’s estate distributed to her in the form of a trust.
Standing alone, article Fourth of the witnessed will gave to Joan one-half of the testator’s estate. The lower court, however, construed the codicil of November 21, 1955, wherein the testator declared his “wish” that her share be paid to her in monthly installments, to establish a trust for Joan’s benefit limiting her enjoyment of the estate and delaying its distribution to her until David reaches the age of 21. Appellant contends that the absolute bequest in article Fourth controls and that her share should be distributed to her
We are in accord with the lower court’s interpretation of the will and find its construction of the several testamentary instruments to be reasonable and to reflect the true intention of the testator to create a trust for Joan similar to the one he had previously set up for David. A review of the five documents, construed as one instrument (Prob. Code, § 101), reveals the testator’s simple plan to benefit both grandchildren equally, made complicated only by his inability to draft an instrument reflecting what he wanted to do. His obvious plan to treat his two grandchildren alike and leave his estate to them in equal shares to be distributed to them in the same manner and at the same time, and the circumstances of the draftsmanship of the instruments in question, justify the conclusion that the testator intended to and did create a trust for Joan’s benefit. We also conclude that such an interpretation does violence neither to the rule against perpetuities nor to the statute against restraints on alienation.
However the issue of the testator’s intention herein arises, it is clear that in cases of this kind the question of intent is one of fact and, in addition to the words of the instrument, there may be considered in this connection such matters as the size of the estate, the property involved, the relations of the parties to each other and to the testator, and the circumstances of the execution of the documents. (Estate of Kearns, 36 Cal.2d 531 [225 P.2d 218]; Estate of Mitchell, 160 Cal. 618 [117 P. 774]; Estate of Marti, 132 Cal. 666 [61 P. 964, 64 P. 1071].)
It cannot be disputed that originally the testator intended to give Joan one-half of his estate outright and so declared (article Foubth) ; and that at the same time, for the remaining one-half of his estate, by proper provision he intended to and did set up the machinery necessary to create a trust for David’s benefit, complete with conveyance to a
Two matters of significance are revealed in the five testamentary documents—the testator’s clear intent to create a trust for each grandchild, and his lack of knowledge and
To impose a trust upon the absolute estate conveyed to Joan in the witnessed will, appellant contends it must appear that the testator intended to impose mandatory duties
Standing alone, article Fourth—“I give one-half (%) of all my property, ... to my grandchild, Joan . . .”— would bequeath that portion of decedent’s estate to Joan absolutely; therefore, by his first codicil—“It is my Wish that My Grand Daughters share—Joan Eldred—of My estate be Paid to Her In Monthly Instalments of $50.00 For each And Every Month,”—did the testator intend to impose a legally enforceable duty, or merely a moral obligation in connection with the property 1 Although it is true that words of wish, desire, hope or recommendation addressed to a devisee or legatee do not import a command, a trust or a charge (Estate of Marti, 132 Cal. 666 [61 P. 264, 64 P. 1071]), and that to create a trust, the declared wish or desire must constitute a direction, imperative and mandatory, such words, under ordinary circumstances precatory in nature, became testamentary and imperative when used in direct reference to the estate and addressed or directed by the testator to his executor; they then, are construed not as a mere request limiting the estate given in absolute terms, but as a command. (Estate of Lawrence, 17 Cal.2d 1 [108 P.2d 893]; Estate of Miles, 72 Cal.App.2d 336 [164 P.2d 546] ; Estate of Marti, 132 Cal. 666 [61 P. 264, 64 P. 1071] ; Estate of Tooley, 170 Cal. 164 [149 P. 574, Ann.Cas. 1917B 516] ; Estate of Pforr, 144 Cal. 121 [77 P. 825]; Estate of Hood, 57 Cal.App.2d 782 [135 P.2d 383].) The testator addressed the words of the codicil of November 21, 1955, directly to “the Administrators.” Applying the above rules of construction, it is clear that a trust was created by will—the testator’s wish was directed to the administrator (executor) not to a devisee or legatee, and thus became mandatory (Estate of Collias, 37 Cal.2d 587 [233 P.2d 554]), creating a legally enforceable duty.
Appellant’s last contention is that the codicil of November 21, 1955, violates the rule against perpetuities, citing sections 715.2 and 716, Civil Code. Predicating her claim on the provisions of the witnessed will and the codicil of November 21, 1955, she argues that the testator intended to provide for all of her children as contingent beneficiaries
The lower court construed the intention of the testator to be that his great-granddaughter, Vicki, be the sole beneficiary of Joan’s share of his estate in the event of her death; and in accord with the provisions of the last codicil, the court exercised its discretion by decreeing distribution of the estate to the heirs at law of decedent in the event Joan, Vicki and David should die before the latter reaches the age of 21. This allows for no contingent future interests other than in Vicki, clearly a life in being, and we deem such a construction reasonable and proper.
It is obvious that when the witnessed will (giving one-half of decedent’s estate to Joan “or her issue by right of representation”) and the codicil of November 21, 1955, (directing the $50 payments upon Joan’s death to continue “to her children, If there Are Any”) were executed, Joan had no children. Sometime thereafter, but prior to January 30, 1957, Joan’s first child was born, for on that day the testator declared his acquisition of a great-granddaughter, Vicki. From that time on, although it may well be Joan subsequently had other children, no provision was ever made by him for, nor was any mention made of, Joan’s children or issue; on the contrary it is apparent he had no desire or intention to benefit any other child than Vicki for he specifically and in great detail provided solely for Vicki, not only in his third but in a subsequent codicil, his last. Whereas he had theretofore in his witnessed will provided that “her issue” should inherit Joan’s share of his estate upon her death, upon Vicki’s birth, the testator in his codicil of January 30, 1957, specifically provided “Should She survive her mother Joan Eldred It is My Wish Vicki inherit Her Mother’s share of My Estate,” and reaffirmed this specific intent to benefit Vicki only, excluding by omission any other children, in his last codicil dated March 30, 1958, in which he again directly and exclusively provided that “Should Joan’s daughter Vicki . . . survive her mother . . . Vicki . . . shall receive all her mother’s share of My Estate.”
For the foregoing reasons the judgment is affirmed.
Fourt, Acting P. J., and Drapeau, J. pro tem.,
Assigned by Chairman of Judicial Council
Case-law data current through December 31, 2025. Source: CourtListener bulk data.