Stoner v. Nethercutt

Opinion

GUSTAFSON, J.

Andrew Norman, a wealthy man, was the trustor of an amendable living trust. Defendant Andrew Norman Foundation, a nonprofit corporation, receives for use for its general charitable purposes the net income from the trust after the payment of fees, expenses and specified amounts to designated individuals.

On January 14, 1958, the trustor amended the trust to include plaintiff

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Dorothy B. Stoner as one of the individuals to receive a specified amount before distribution of the remainder to the corporation. Upon the death of Andrew Norman, plaintiff was to receive $500 per month “provided she is unmarried on that date, and continuing for her lifetime or until her remarriage.” Andrew Norman died October 23, 1959, and plaintiff received 12 monthly payments. The trustee ceased making payments to plaintiff when plaintiff informed the trustee that on October 1, 1960, she had married Gerald T. McNees.

McNees was married to another woman at the time he married plaintiff. Thus plaintiff’s marriage to McNees was “illegal and void from the beginning.” (Civ. Code, § 61, now Civ. Code, § 4401.) Although plaintiff knew that McNees was a resident of California and that he had obtained no final decree of divorce in California, she relied upon his representation that a divorce decree which he had obtained in Mexico was valid. McNees and plaintiff lived together as husband and wife for three years after which she filed a complaint for divorce. When she substituted attorneys in the divorce action, her new attorneys advised her that the marriage was bigamous and an amended complaint was filed seeking an annulment. The annulment was granted November 4, 1964.

Claiming that her void marriage to McNees was not a “remarriage” within the meaning of the trust instrument, plaintiff demanded of the trustee that she be paid $500 per month beginning from the time that the monthly payments ceased in 1960. The trustee refused to comply with her demand and this action to require the trustee to pay plaintiff followed.

The trial court found that the plaintiff was entitled to be reinstated as a beneficiary, but that she was estopped to recover the payments which would otherwise have been due to her from the date she notified the trustee of her “remarriage” to the date she notified the trustee that there had been no “remarriage.”