Giacomelos v. Bank of America

DRAPER, P. J.

Plaintiff seeks damages for conversion. She is the widow of a testator who left income-producing real property to her for life, with remainder to defendant bank as trustee for his two children by a previous marriage. Under threat of condemnation, the property was sold to the state November 24, 1959. Plaintiff widow wanted the proceeds invested, with income to her for life. The bank pointed to statutory provisions (Code Civ. Proc., §§ 778, 779) which it felt required present division of the sale proceeds. The dispute was submitted to the probate court on petition of the trustee bank. That court ordered division, and plaintiff widow appealed. The order was reversed

(Estate of Giacomelos,

192 Cal.App.2d 244 [13 Cal.Rptr. 245, 91 A.L.R.2d 956]) in an opinion based upon a third code section (Code Civ. Proe., § 781). The funds were invested January 30, 1962. Plaintiff brought this action for additional income she would have received before that date if the investment had been made promptly upon sale. Judgment was for defendants, and plaintiff appeals. Although the remaindermen are joined as defendants, the parties argue only the propriety of the acts of the bank as testamentary trustee.

The only issue is whether there was a conversion. Conversion is an intentional exercise of dominion over a chattel which interferes with the right of another to control it. (Rest.2d Torts, § 222A;

DeVries

v.

Brumback,

53 Cal.2d 643, 647 [2 Cal.Rptr. 764, 349 P.2d 532]). The good faith of the bank is conceded, but, admittedly, is not a defense

(Poggi

v.

Scott,

167 Cal. 372, 375 [139 P. 815, 51 L.R.A. N.S. 925]). The law does recognize the dilemma of one in possession as a bailee or similar holder upon demand by a third party for the goods. Such holder does not become a converter by making a qualified refusal to surrender if his

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