Alvis v. Bank of America National Trust & Savings Ass'n

WARD, J.

This is an appeal by the intervening remainder-men from a judgment entered in the Superior Court of San Mateo County against defendant trustee in the sum of $3,-"121.91 and in favor of plaintiff, a judgment creditor of the beneficiary of a spendthrift trust. The interveners are the two sons of the beneficiary.

The case was tried on an agreed statement of facts. Briefly, they are as follows: Ida Henderson Sevier on March 20, 1930, created an

inter vivos

trust, to which amendments were made in 1932, 1938 and 1940, providing that the income be paid to

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her during her life and on her death the corpus be divided among her seven children. The' corpus was to. go outright to five of the children and the shares for the other two were to be held in trust, the income to be paid to each such' beneficiary for his life. One of these latter beneficiaries, Abner J. Sevier, was the one designated to receive the income here involved. Under the third and final amendment to the trust agreement it is provided that:

‘1

The part of this trust estate bearing the name of the said Abner J. Sevier . . . shall be continued in trust for his use and- benefit so long as he shall survive,- and during such continuance the Trustee • shall pay to or .expend for and on his behalf all of the net income derived from the part bearing his name. Upon the ■ death of the survivor of the Trustor and the said Abner J. Sevier the Trustee shall pay, deliver and convey all of the part of the trust estate bearing the name of the said Abnér J. Sevier and then -remaining in' its hands in equal shares' to his children, James Abner Sevier and Robert Melvin Sevier, or to the survivor of them, . '. . Each and every beneficiary of' this trust, shall be without right, power or authority to sell, assign, pledge, hypothecate by mortgage or deed of trust, or in any manner encumber, anticipate or impair his or her beneficial or legal interest in the trust or any part thereof, and no part of the income and/or principal of the trust shall be subject to the claims of any creditor of any beneficiary, nor liable to attachment, garnishment, execution or any other process of law.” In October, 1941, Abner J. Sevier was arrested for the alleged commission of a crime and bail was set at $1,500. On payment to him of $150, George J. Alvis, a bail bond broker and the husband of plaintiff, issued a bond, posted the bail, and. Abner was' released from custody. Abner disappeared October 4, 1941, before trial, and has neither been seen nor heard from since. George J. Alvis was required to make good on the bond. Approximately 13 months later the trustor died and Abner’s share of the corpus was put in trust for him as provided in the trust agreement. The income has accumulated at the rate of approximately $100 per month- and at the time of entry of judgment totaled the sum of $6,128. This accumulated income has been allocated by the . trustee for the purpose of paying to or expending for and on behalf of Abner. On May 1, 1946, plaintiff, Dorothy E., Alvis, as administratrix of the estate of George J. Alvis, had recovered a judgment against Abner J. Sevier which, with interest and costs at the time of attempted execution, amounted tq $2,916.69.