Smith v. Bank of California

SPENCE, J.

Four appeals in the above-entitled cause have been presented herein on one set of briefs. The first appeal is from a judgment on the amended petition for the

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determination of the rights of Elaine Grace Smith, a minor. The second appeal is from the orders settling the eighth and ninth accounts of the trustees. The third appeal is from the order settling the tenth account of the trustees. The fourth appeal is from the order dismissing an order to show cause.

The above-entitled cause was before this court on a former appeal.

(Estate of

Smith, 4 Cal. App. (2d) 548 [41 Pac. (2d) 565].) The trust provisions and the allegations of the amended petition are set forth in the opinion on the former appeal and need not be repeated here. It was there held that the probate court had jurisdiction of the controversy and that said court had erred in sustaining the demurrer to the amended petition. The order denying said amended petition was therefore reversed with directions to overrule the demurrer. Thereafter the trustees answered and a trial was had before the court sitting without a jury. Findings were made by the trial court and a judgment was entered thereon as follows: (1) That petitioner Elaine Grace Smith, a minor, together with her brother and her sister, were the lawful issue of Sidney V. Smith, Jr., and Elaine T. Smith and were entitled as such to all the rights conferred by the trust created by the last will and testament of Sidney Y. Smith and were entitled to receive from the income of the trust the amount which in the judgment of the trustees was necessary for their support, maintenance and education; (2) that petitioner recover her costs; and (3) that the court retain jurisdiction to give such further orders and directions as might be necessary to protect and enforce the rights of the parties under the trust. Of the appeals now before us, the first appeal above mentioned was taken by petitioner from “the whole of said judgment” excepting the affirmative portions thereof as above set forth.

The hearing upon the settlement of the eighth and ninth accounts of the trustees was had at the same time as the hearing on said amended petition. Prior to that time, petitioner, Elaine Grace Smith, had filed her “Answer and Objections to Accounts of Trustees”. Said petitioner had also filed a “Cross-Complaint” against the trustees by which she sought to recover damages for the alleged violations by the trustees of their duties. Upon motion of the trustees, said cross-complaint was ordered stricken from the files. At the hearing