Allen v. Blair

MARKS, J.

This is an action brought under the provisions of section 1060 of the Code of Civil Procedure by the trustee of an express trust against the trustor and the beneficiaries for the purpose of determining and declaring the meaning and effect of a provision in paragraph XIII of the declaration of trust, which is as follows: “Should the Trustor default in the performance of any of his obligations hereunder or in the payment of any sum which may be payable by him under the terms of this Declaration of Trust, the Trustee may, and it is hereby specifically authorized and directed to, sell any part or all of the property constituting the principal or

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of the trust estate which in its discretion may be deemed advisable, and use the proceeds therefrom, or any part thereof, and/or any cash which may be in its hands and subject to this trust, to pay any and all sums in respect to the payment of which the Trustor is in default under the terms hereof; ...”

The trial court found this provision mandatory and entered judgment accordingly. We have concluded that the quoted language supports this conclusion. It seems to us clear that upon the default on the part of trustor to perform the obligations imposed upon him by the declaration of trust it became the duty of the trustee to sell any portion of the trust estate necessary to make good the default of the trustor and that the only discretion given the trustee was in the selection of the property to be sold. A study of that portion of the declaration of trust brought before us forces the conclusion that it was the clearly expressed intention of John H. Blair, the trustor, to provide a trust fund of $300,000, having a net income of not less than $1500 per month, for the support of Velma Blair his wife, and Marion Blair, his daughter, during the life of Mrs. Blair, with provisions for the support of the daughter thereafter. The obligation was placed upon Blair to keep the value of the

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of the trust estate up to $300,000 and supply any deficit in its net

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income should such income be less than $1500 per month. It is admitted that the value of the trust estate had been reduced below $300,000 and the net income below $1500 per month and that Blair had not made good these deficiencies. It then became the plain duty of the trustee to sell such property belonging to the trust estate which he might select to supply the deficiencies.