Estate of Schramm

California Court of Appeal Dec 23, 1952 No. Civ. No. 19253Published

Before: Moore

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Holding. The court held that the testatrix intended for the appellant to be employed as building manager and to receive compensation only after the distribution of the trust assets to the trustees, not during the period of probate administration.

Issues

Whether the appellant was entitled to be employed as building manager and receive a salary during the probate administration of the estate.
Whether the testatrix intended for the income from the trust property to be used for probate expenses rather than for the appellant's compensation during administration.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In view of the order outlined and the language employed by testatrix, it is unmistakable that she intended for appellant to be employed only by the trustees and only during the period of the trust.”

“Payment to appellant of the fixed compensation out of the Blake Building income during probate is contrary to the expressed purpose of testatrix in her codicil.”

115 Cal.App.2d 55 (1952) ESTATE OF LILLIAN E. SCHRAMM, Deceased. FARMERS AND MERCHANTS NATIONAL BANK OF LOS ANGELES, Respondent,

CLARENCE LIZDENNIS, Appellant.

Civ. No. 19253. California Court of Appeals. Second Dist., Div. Two.

Dec. 23, 1952. Lester L. Lev for Appellant.

Sheppard, Mullin, Richter & Balthis, and Frank S. Balthis for Respondent.

MOORE, P. J.

By her last will and its codicils executed in 1951, Lillian E. Schramm created four trusts (A, B, C and D) with her favorite bank as a trustee. After her decease in February, 1952, the bank and Clarence Lizdennis, sole beneficiary under Trust D, were, according to the will, appointed cotrustees of that trust, and the bank as sole executor. Clarence was to receive the total net income of Trust D which was to terminate five years after distribution. At that time the assets are to be distributed to Clarence free of the trust. If he should not survive the period of the trust, it will continue as a trust for charitable uses.

The controversy here involved arises out of the seventh clause of the will. [fn. *] Because item 4 under A directs that [57] Clarence is to be engaged as "building manager for said properties" at a salary of $2,000 a month provided he "devotes his full business time to said activity" he conceives that he should have been promptly designated as the manager of the Blake Building by the bank which was qualified as executor of the will so that he could receive, during probate, the specified salary for devoting his full time to the task of managing the Blake Building. Respondent contends that the testator did not intend that Clarence should become the building manager during probate but that he should enter upon such duties after distribution of the entire estate to the trustees. For the reasons about to be stated, it appears that the trial court's interpretation of the will was without error.

[1] It is agreed that in construing a will the court must ascertain the intention of the testator as expressed by his own declaration. The authorities concur. (Estate of Layton, 217 Cal. 451, 458 [19 P.2d 793, 91 A.L.R. 480]; Estate of Wilson, 184 Cal. 63, 67 [193 P. 581].) [2] It is also a rule of construction that if the intention cannot be enforced to its full extent, it must have effect as far as possible. (Prob. Code, 101; Estate of Bjors, 103 Cal.App.2d 361, 370 [229 P.2d 468].) Each case depends upon its own peculiar facts. But little aid can come from precedents except insofar as they announce or confirm established principles. (Ibid) [3] The will and entire scheme of disposition should be viewed as a whole. (Estate of Franck, 190 Cal. 28, 31 [210 P. 417].)

Estate of Schramm

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MOORE, P. J.

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