Estate of Mullins

190 Cal.App.2d 413 (1961) Estate of SARAH JANE MULLINS, Deceased. MICHAEL H. SKIBINSKI, Appellant,

v.

BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (a National Banking Association), Respondent.

Civ. No. 9874. California Court of Appeals. Third Dist.

Mar. 22, 1961. Tindall & Tindall for Appellant.

Trabucco & Sloan and Breece W. Sloan for Respondent.

SCHOTTKY, J.

This is an appeal from an order denying the petition of Michael H. Skibinski by which he sought to require the trustees of a trust for support created by the will of Sarah Jane Mullins to reimburse him for expenditures made in the care and support of Dorothy Pelligreen, a lifetime beneficiary of the trust. [415]

Sarah Jane Mullins died on July 21, 1946. By the terms of her will she created a trust which provided in part that the trustees "shall pay to or for the benefit of my daughter, Annie Pelligreen, and my granddaughter, Dorothy Pelligreen, whatever shall be required for their proper care, education, support and reasonable recreational needs, using the net income and whatever of the principal may be necessary." The trust also provided that upon the death of Annie Pelligreen all of the income should be paid to Dorothy Pelligreen and that upon the death of both of the life beneficiaries the trust was to terminate and the trustee instructed to deliver the remainder of the estate to named third parties.

Annie Pelligreen died on December 10, 1948. Dorothy Pelligreen was an incompetent, and appellant Skibinski was appointed her guardian in 1947. He entered upon his duties and continued to act as her guardian until the death of Dorothy Pelligreen on November 18, 1958. He cared for her until 1956 when she was committed to a state hospital, at which time, pursuant to an order of the court, the trustee terminated the monthly payments of $200 to appellant. His final account was settled by the court on November 20, 1958, and he was discharged as guardian. This account showed that he had expended the sum of $1,728.67 more on behalf of his ward than he had received from the trustee. On February 3, 1959, he filed a petition in the probate proceeding "To Enforce the Terms of Trust and to Instruct and Require Trustee to Pay Petitioner for Expenditures Made in the Care and Support of Dorothy Pelligreen." A hearing was held and the court determined that it, sitting in probate, had no jurisdiction in the matter but that it should be determined in an adversary proceeding in the civil court. The court also held that since the trustee had made monthly payments of $200 to Skibinski in accordance with an order of the court it would be improper for him to wait and accumulate deficits before asking for an increase. This appeal followed.