Estate of Gorchakoff

California Court of Appeal Dec 6, 1951 No. Civ. No. 18718Published

Before: McComb

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Holding. The court held that the residuary trust did not violate the rule against perpetuities because it was required to terminate upon the death of a person in being at the time of the trust's creation, and that the charitable bequest issue was premature.

Issues

Did the will violate the rule against perpetuities as set forth in sections 715, 716 and 724 of the Civil Code?
Did the will violate section 41 of the Probate Code in that it awarded to charity more than one third of the estate?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The trust came into existence upon the death of decedent. Therefore under the provisions of the will above quoted it was to terminate in any event upon the death of a person in being at the time of the creation of the trust.”

“The probate court expressly reserved jurisdiction to determine at a later date the amount to be awarded to charity.”

108 Cal.App.2d 44 (1951) Estate of MAURICE GORCHAKOFF, Deceased. SECURITY-FIRST NATIONAL BANK OF LOS ANGELES, Respondent,

BENJAMIN GORCHAKOFF, Appellant.

Civ. No. 18718. California Court of Appeals. Second Dist., Div. Two.

Dec. 6, 1951. Thomas Morris and Albert E. Coger for Appellant.

Hugh Ward Lutz for Respondent.

McCOMB, J.

This appeal is from a decree of distribution holding valid a residuary trust created by the will of decedent.

Maurice Gorchakoff died March 31, 1950, aged 71 years, leaving a will dated March 6, 1947. Surviving him were his two heirs at law, his daughter, Mrs. Beatrice G. Leader, and a son, Benjamin Gorchakoff. Mrs. Leader has had no issue while Benjamin Gorchakoff has two daughters, Gloria and Marlene, and a son, Robert.

The estate was of the appraised value of $65,006.90. The will provided in part as follows:

"FIFTH: I give, devise and bequeath all of the rest, residue, and remainder of my estate, both real and personal and wheresoever situate, including all lapsed legacies, to Security-First National Bank of Los Angeles, a national banking association, in trust, to hold, manage and distribute, as hereinafter provided:"

"(1) To collect the principal and interest of the trust estate, invest and reinvest the same; to pay, accumulate, use and manage the income, and to use, manage and invest the principal and income, as hereinafter provided:"

"(2) All income shall be added to and become principal."

"(3) The Trustee shall pay out of the principal so accumulated the sum of $150.00 per month to my daughter, Beatrice G. Leader, for life. If my daughter shall predecease me, or shall die after the creation of this trust, leaving issue, her surviving, said sum of $150.00 per month shall be paid in equal shares to said issue until the youngest of such issue shall have reached the age of 21 years, at which time said payments shall terminate. If in the discretion of the Trustee the sum of $150 shall be insufficient to provide my said daughter or her said issue her surviving with reasonable care in case of illness or accident, the Trustee may pay to, apply or expend for the care of my said daughter or of her issue her [46]

Estate of Gorchakoff

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