Cohen v. Meyers

Opinion

IRWIN, J.

*

Plaintiffs appeal from a declaratory judgment holding that no valid trust was created by a written amendment to a partnership agreement and that one of the partners succeeded to the community interest of his deceased wife under the laws of intestate succession.

Findings of the lower court set forth these basic facts, which are not disputed: “Prior to September 11, 1961, Alex Cohen and his wife, Verna,

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owned as their community property, a 50% interest in the San Fernando Furniture Company, a partnership. On that date, Alex Cohen, Verna Cohen, and the other 50% partner, Louis Cohen, met to execute a written amendment to the partnership agreement (hereinafter referred to as the ‘1961 Amendment’). . . . Although Verna Cohen was present at the signing, she did not, herself, sign the 1961 Amendment.

“At the signing of the 1961 Amendment, in addition to Alex, Verna and Louis Cohen, there was also present George R. Olincy, attorney for said three persons. At said signing, George R. Olincy asked Verna Cohen if she understood the intended effect of said Amendment, approved of its provisions and agreed to be bound thereby, and she stated that she did. George R. Olincy then advised Verna Cohen that her signature was not required on the Amendment because she was not a partner.

“The 1961 Amendment provides (among other things) that, upon the death of Verna Cohen, her 25% community interest should go to Alex Cohen as Trustee, to be held and distributed in the manner set forth in paragraph VIII 3 C, commencing on page 4 of the Amendment.

“Verna Cohen died intestate on November 5, 1961.

“Alex Cohen died on April 20,1963, . . .”

From these facts the lower court declared that the “1961 Amendment” did not create any trust and that the 25 percent community partnership interest of Verna Cohen passed to Alex Cohen under the laws of intestate succession, and is distributable in accordance with his will.

Appellants contend: (1) that the 1961 Amendment created a voluntary trust as to the trustor (Verna Cohen) specifying by.words their intentions to create a trust and the subject, purpose and beneficiary thereof; or, (2) that if the Verna Cohen trust was not a valid trust, it was binding as an involuntary trust. The subject of the alleged trust was Verna Cohen’s community interest in the partnership business. We must affirm the judgment.