Mummert v. Security-First National Bank

SCOTT (Robert H.), J. pro tem.

*

Plaintiff brought an action for declaratory relief relating to a trust agreement, and from a determination contrary to his contentions has appealed. The defendant bank is the trustee, plaintiff and his sister, May Mummert, now deceased, were the trustors of an

inter vivos

trust and the two remaining defendants are potential beneficiaries of a certain portion of the trust property.

On October 28, 1930, May and Austin Mummert executed the first of a series of documents relating to the trust, reserving in it the power to amend the trust agreement.

On August 10, 1944, the trust estate was divided into two parts: Trust Fund “A” being the theretofore undivided one-half interest which had been conveyed to the trustee by Austin; and Trust Fund “B” being the portion conveyed by May. Austin has exercised unchallenged control over Trust Fund “A” and the dispute in this case relates only to Trust Fund “B.” The trustee believes that Trust Fund “B” cannot be controlled by Austin following the death of May on March 8, 1955. Under the agreement as it existed at the time of her death certain valuable property would go to beneficiaries named as defendants herein; whereas Austin now wishes it to go to another beneficiary: Pacific Homes, a corporation, and, on May 20, 1958, attempted to direct the trustee to that effect. The trustee believes that it does not have the power to accede to his wishes with respect to the property in Trust Fund “B” and the trial court so determined. From an examination of the agreements relating to the trust property it is apparent that its decision was correct.

On June 27, 1941, a so-called “Amendment of Declaration of Trust” was executed by the two trustors and the trustee bank which referred to the 1930 agreement and stated that:

[197]

“Articles I to XIV, both inclusive, and the amendments thereof made on July 2, 1934, and June 15, 1935 are hereby cancelled and of no further effect and in lieu thereof the following is substituted: etc. ’ ’

Since there were only 14 articles in the 1930 agreement this language had the effect of cancelling that entire agreement and substituting a new one in its place.