Burwell v. McCabe

BARNARD, P. J.

Mr. McCabe died on February 6, 1928. Under the terms of his will and a decree of distribution entered on April 5, 1929, Mrs. McCabe received some $330,000 and also received $50,000 in trust for their daughter Virginia, the trust to terminate when she reached the age of 21 years. Admittedly, Mrs. McCabe mingled these trust funds with her own, kept no record or account, and could produce no receipt or voucher of any kind. Virginia reached the age of 21 years on July 23,1942.

On November 12, 1947, the “First and Final Account” of this trusteeship was filed by Mrs. McCabe after a citation had been issued. (See

Estate of McCabe,

80 Cal.App.2d 823 [183 P.2d 72].) In this account, she charged herself with $50,000 and claimed credits of $54,065.34 for expenditures over a period of 15 years, from 1928 to 1942. Briefly stated, about $23,000 was charged as the expense at certain schools and of various trips; about $8,500 as the beneficiary’s share of maintaining the family home; and $22,500 as the “reasonable average cost (of board, clothes, laundry, etc.) for 15 years, 1928 to 1942” at $125 per month. An order approving that account was reversed, on appeal, as to this last item.

(Estate of McCabe,

87 Cal.App.2d 430 [197 P.2d 35].)

On June 21,1949, Mrs. McCabe filed a supplemental account listing monthly charges for food, clothes, laundry, etc., in the various years, with “total expenditures for Virginia for 15 years, 1928 to 1942—$23,739.45.” An equitable action was also brought by Virginia seeking to have the trust funds traced, marshalled and impounded.; asking for declaratory relief and a recovery of the amount due; and praying for such other relief as might be just. These matters were consolidated and heard together. The court found, with respect to the supplementary account, that the trustee had thus expended $23,-

[505]

739.45, or more than the $22,500 for which she was required to account; that in so doing she had exercised her discretion; and that although no accounts had been kept it was established by evidence satisfactory to the court that these amounts were actually and properly spent for the benefit of the beneficiary. An order was entered approving the account and discharging the trustee. With respect to the other action, the court found that the trustee had thus expended in excess of $50,000; that while she had mingled the trust funds with her own, she had now made a full and proper accounting; and that her account had been approved. A judgment was entered that the plaintiff recover nothing. The beneficiary has appealed from this judgment and also from the order settling the supplemental account.