Estate of Kincaid

California Court of Appeal Sep 28, 1959 No. Civ. No. 23682Published

Before: Herndon

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Holding. The court held that the appellant was not entitled to trust income by implication because the testator's will contained a clear condition precedent that was not satisfied, and the court cannot rewrite a will under the guise of construction.

Issues

Whether the trial court erred in denying a petition to construe a testamentary trust to include a gift by implication to the appellant.
Whether the appellant's right to trust benefits was subject to a condition precedent that failed to occur.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The intent to make the gift which appellant claims does not clearly appear from the trust instrument.”

“We are not entitled to revise or rewrite the will on the basis of what might possibly appear to us to be a more logical testamentary scheme.”

“The court cannot, under the guise of construction, make a will for the testator in place of the one he has made.”

174 Cal.App.2d 84 (1959) Estate of BEN M. KINCAID, Deceased. BEN A. SECOR, Appellant,

EDWARD B. CORBIN, as Trustee, etc., Respondent.

Civ. No. 23682. California Court of Appeals. Second Dist., Div. Two.

Sept. 28, 1959. Walker, Eilers & Wehrle and Fred F. Wehrle for Appellant.

Frank R. Davis for Respondent.

HERNDON, J.

Ben A. Secor appeals from an order of the probate court denying a petition by which he sought to establish his right to receive maintenance and support under the terms of a testamentary trust created by his grandfather's will. The will of Ben M. Kincaid, duly admitted to probate in 1952, left all of the testator's property to respondent Edward B. Corbin in trust for the following uses and purposes:

"A. The trustee upon evidence of want satisfactory to him shall pay to, use or apply or expend for the reasonable maintenance, comfort, and support, or for expense of accident, illness, or other misfortune of my wife Rose N. Kincaid and my daughter Helen (Kincaid Secor) Rathbun such sums as in the discretion of the trustee may be necessary to be so expended."

"B. Should my daughter Helen (Kincaid Secor) Rathbun predecease me then and in such event my said Trustee shall upon evidence of want satisfactory to him pay, use, apply or expend for the reasonable maintenance, comfort and support, or for the expense of accident, illness, or other misfortune of my grandson Bennie Secor such sums as in the discretion of the Trustee may be necessary to be so expended."

"C. Upon the decease of Bennie Secor the remainder of the estate shall be distributed to the children of Bennie Secor or survivors thereof upon reaching their majority--If Bennie Secor should die without leaving any issue then the remainder of the estate shall be distributed by said Trustee to such educational, religious, or charitable organizations that are qualified to receive such bequests and which my said Trustee in his opinion deems worthy thereof."

The testator was survived by his widow, Rose Kincaid, his daughter, Helen Rathbun, and his grandson Ben Secor, appellant herein. Appellant, the son of Helen Rathbun, is married but has no issue. Respondent Corbin is here in his [86]

Estate of Kincaid

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HERNDON, J.

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