Burwell v. McCabe

BARNARD, P. J.

This is a proceeding brought under section 1121 of the Probate Code to require the respondent, as trustee of a testamentary trust, to render an account.

The petitioner was the adopted daughter of the respondent and her husband. The husband died on February 6,1928. By his will, among other things, he left $50,000 in trust to the respondent for the use and benefit of this petitioner. By the terms of the trust, the respondent was authorized to use so much of the income of the trust estate as might be necessary, and also such part of the principal as she might consider necessary, for the support and education of the petitioner until she attained the age of 18 years. Thereafter, the income was to be paid to the petitioner until she became 21 years old at which time “all of said trust estate and property” was to be paid and delivered to her.

A decree of distribution was entered on April 25, 1929, distributing $50,000 in trust to this respondent pursuant to these provisions of the will. This petitioner arrived at the age of 21 years on July 23, 1942. This proceeding, for the purpose of requiring the trustee to render an account, was filed on

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May 6, 1946. The petition, among other things, alleged that the respondent had never rendered any account or report of her acts as trustee, and that she refused to give any information as to the condition of the trust estate. A citation was issued requiring the respondent to appear and show cause why she should not be compelled to account. The respondent filed an answer admitting that $50,000 from this estate had been distributed to her in trust for the use and benefit of the. petitioner. As one of the defenses, it was alleged that the trust thus created by the will and decree of distribution was terminated at the time the petitioner arrived at the age of 21 years; that this occurred in July, 1942, more than three years prior to the commencement of this proceeding; and that any and all proceedings herein are barred by the statute of limitations and particularly by the provisions of subdivisions 1 and 3 of section 338 of the Code of Civil Procedure.

A hearing was had at which time the respondent was granted additional time within which to make an accounting. The matter came on for further hearing and further accounting on November 25, 1946. On that day the petitioner filed a purported objection to the respondent’s answer, in which it was alleged that the respondent had never told the petitioner anything of this inheritance, and that she learned of it for the first time in April, 1946. On suggestion of counsel, the court ordered that the question of whether the proceeding was barred by the statute of limitations should be first considered. In that connection, the will and the decree of distribution were put in evidence, and a showing was made that the petitioner had reached the age of 21 years on July 23, 1942. Thereafter, the court held that the proceeding was barred by the statute of limitations. Findings of fact and conclusions of law were filed in which, among other things, the court found that by the express terms of the will and the decree of distribution this trust terminated when the petitioner arrived at the age of 21 years; that this occurred on July 23, 1942; that this proceeding was commenced on May 6, 1946; that more than three years had thus elapsed; that petitioner’s cause of action accrued when she reached the age of majority; and that no facts or circumstances existed to toll the statute of limitations. As conclusions of law, it was found that this proceeding is subject to subdivision 3 of section 338 of the Code of Civil Procedure, and that by the lapse of more than three years it became barred. A judg