Smith v. Bank of California, National Ass'n

SPENCE, J.

Elaine Grace Smith, a minor, by her guardian Elaine Smith, appeals from an order entered in the above-entitled proceeding on February 13, 1934, denying “Petition for Determination of Rights of Elaine Grace Smith in Trust etc.,” and also from an order entered in the above-entitled proceeding on March 24, 1934, denying “Amended Petition for Determination of Rights of Elaine Grace Smith in Trust etc.”

After the first-mentioned order was made on February 13, 1934, sustaining the demurrer to the original petition and denying said petition, appellant made a motion for leave to file an amended petition which motion was granted. The amended petition was thereafter filed and as said amended petition superseded the original petition, we believe that the appeal from the order of February 13, 1934, should be dismissed. We shall therefore deal only with the amended petition and the propriety of the order sustaining the demurrer to and denying the amended petition.

The trust involved was created by the will of Sidney V. Smith, deceased, and in 1927 the estate of said deceased was distributed to respondents Bank of California, National Association, and Felix T. Smith, as trustees thereunder. The

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terms of said trust, so far as material here, were as follows: “Said trustees shall manage and control said property, collect the income thereof and apply the same so far as in their judgment they shall deem it necessary, to the support, maintenance and education of the issue of Sidney V. Smith, Jr., by Elaine T. Smith. During the lifetime of Sidney V. Smith, Jr., any of said income which in the judgment of said trustees is not necessary for the support, maintenance and education of said issue shall be applied so far as said trustees in their judgment may' deem it necessary to the support and maintenance of Sidney V. Smith, Jr. Any balance of said income which in the judgment of said trustees shall not be necessary for any of said purposes shall be paid to said Sidney Y. Smith, Jr.” It was further provided that the trust should terminate and that the trust estate should be distributed

per stirpes

to the lawful issue of Sidney Y. Smith, Jr., upon the death of the survivor of said Sidney Y. Smith, Jr., and Elaine T. Smith. In 1933, said trustees filed their seventh account as such trustees. In their accounts said trustees stated that the beneficiaries of said trust were Sidney Y. Smith, Jr., Sidney Y. Smith IY and Cora Smith. No mention was made of appellant. After the filing of said seventh account, appellant instituted this proceeding for the determination of her rights.