Sherwood v. Superior Court

McCOMB, J.

This is an appeal from an order of the probate court denying the petition of Harry Sherwood (formerly known as Harry Shapiro) to be reappointed as sole

[732]

trustee

without bond

of the testamentary trusts created by the will of Nathan W. Shapiro.

The undisputed facts are these:

Nathan W. Shapiro died December 20, 1936, leaving surviving as his sole heirs his wife, Rose Rabenowitz, two adult sons, Harry Sherwood (petitioner herein) and Joseph Shapiro, and one adult daughter, Charlotte Lewis. By his last will and testament decedent appointed two brothers and petitioner, or the survivors or survivor of them, to act as trustees of certain trusts provided for in his will. There was no provision in the will that the trustees post security. The two brothers declined to act as trustees and consented that petitioner act as sole trustee. Accordingly, in a decree of distribution made on July 25, 1938, the bulk of decedent’s estate was distributed to petitioner as sole trustee, to act

without bond.

Petitioner so acted continuously until July 31, 1942.

On July 10, 1942, petitioner was inducted into the armed forces of the United States, at which time he petitioned the probate court to accept his resignation as trustee, expressly providing that such resignation was “without prejudice to his reappointment as sole trustee of such trusts at such time in the future as he is able to devote the necessary time and attention to the duties of such trusteeship.” In his petition he requested that his sister, Charlotte Lewis, be appointed as trustee to act in his stead during the period of his military service, and without prejudice to his reappointment as sole trustee upon the termination of such service. The sister petitioned to be appointed trustee “without prejudice to the reappointment of Harry Shapiro as sole trustee of such trusts being administered in the matter of this estate, at such time in the future as said Harry Shapiro will again be able to assume the duties of such trusteeship.” On July 31, 1942, the probate court made an order accepting petitioner’s resignation and appointing Charlotte Lewis as trustee “without prejudice to the reappointment of Harry Shapiro as sole trustee. ’ ’