Talcott v. Talcott

KNIGHT, J.

This appeal involves the question of the power of the plaintiff and respondent, derived from the terms of a written agreement and a final decree of distribution, to sell the property distributed to her by said decree.

The decedent, Charles M. Talcott, died testate on March 7, 1935. He was survived by a widow, Minnie D. Talcott, the plaintiff and respondent, and two married sons, Vaughan and Thaddeus Talcott. After making several specific bequests, the testator bequeathed his estate to the First Trust and Savings Bank of Pasadena in trust with directions to pay the net income therefrom to his widow during her lifetime, and upon her death to divide and pay over the estate in equal shares, to the two sons; and the bank as such trustee was given full

[745]

power and authority to hold, use, manage, sell, invest and reinvest the property of the estate. The bank declined to serve as trustee, whereupon the widow and her two sons entered into a written agreement authorizing and requesting the court to distribute the estate as provided therein. The agreement was dated December 1, 1935. It was signed by the widow as party of the first part, and by the two sons “as second party”; and the agreement provided in part as follows: “First: That the whole of the said estate be distributed to first party as the surviving widow of the said decedent for the period of her lifetime. First party shall be vested with the same power over and control of said estate as is given to the trustee named in said will and shall have the right-to all of the benefits from said estate, both as to principal and income, including the One Thousand ($1,000.00) Dollar bequest, payment of which prior to distribution was waived by first party as she would have received or been entitled to as beneficiary of the trust set forth in said will. First party shall have the right to sell, assign, exchange, transfer, encumber or hypothecate said estate or any portion thereof in her own name with the consent of the second party, and in connection therewith the signature of first party shall convey full and complete title and ownership thereto to any purchaser, grantee, transferee or assignee. ...” The agreement then provided that upon the death of the widow the estate should be divided between the two sons in the manner therein specified. The decree of final distribution was entered on January 22, 1936, and admittedly it was based upon the agreement of the parties. It distributed the estate as follows: “To Minnie D. Talcott for the period of her lifetime with power to receive and use the entire income therefrom, together with a sum not to exceed Two Thousand ($2,000.00) Dollars per annum from the principal of the said estate, and further with the power to sell, assign, exchange, transfer, encumber or hypothecate said estate or any portion thereof with the consent of Vaughan H. Talcott and Thaddeus M. Talcott.” The decree then went on to provide that upon the death of the widow the remainder of the estate should be divided between the sons in the manner there stated.