In Re Bauer

17 Cal.App.2d 426 (1936) In the Matter of the Trust Created by Deed of MARY BAUER to CHARLES A. HELLWIG. MARY BAUER, Appellant,

v.

AMERICAN TRUST COMPANY, Respondent.

Civ. No. 10321. California Court of Appeals. First Appellate District, Division Two.

November 12, 1936. Charles A. Christin and Thomas J. Keegan for Appellant.

Brobeck, Phleger & Harrison for Respondent.

Sturtevant, J.

From a decree adjudging that a trust had been terminated and settling the account of the trustee, Mary Bauer, as the beneficiary under the trust, has appealed.

Heretofore Mary Bauer was the owner of a certain lot and improvements thereon located near the corner of Eighth and Mission Streets in San Francisco. On the 19th day of June, 1918, she conveyed said property to Charles A. Hellwig to hold the same in trust for her according to the terms designated in the deed. Later Charles A. Hellwig resigned as trustee and Mercantile Trust Company was appointed trustee in his place. Thereafter the Mercantile Trust Company was merged with the American Bank, another corporation, and the two became the American Trust Company.

Mary Bauer was also the owner of certain properties located in Marin County. At San Anselmo in said county the American Trust Company maintains a branch bank. At some time prior to the commencement of this action Mary Bauer executed a deed of trust in favor of the San Anselmo branch of the American Trust Company to secure a promissory note evidencing an indebtedness. [428]

From the date on which it was appointed trustee down to December 6, 1933, the American Trust Company discharged its duties as trustee under the Hellwig trust. On the date last mentioned it filed a petition, report, and account in the above-entitled matter in the superior court in San Francisco. In that document the American Trust Company set forth the following facts: It pleaded the execution of the trust deed to Charles A. Hellwig and set it forth in haec verba. Among other things, that deed contained the following: "To Have and to Hold unto said party of the second part in trust, however, for the following uses and purposes, towit: To manage and control said real property and receive the rents, incomes and profits thereof for the period of fifteen (15) years from date hereof, if said party of the first part shall live during that period; otherwise during the said life of the party of the first part, and to pay the same to the said party of the first part;" the date, and book, and page of the recordation of said deed; the resignation of Charles A. Hellwig and the appointment of American Trust Company as a substitute; the qualification of the petitioner and the performance of its acts from the date of its appointment, March 12, 1925, to November 6, 1933; that petitioner received $30,301.52, disbursed $29,431.24 and had on hand a balance of $870.28; that every item of receipt and of disbursement was correctly set forth in the formal account attached to the petition; that the trustee had diligently managed the trust property, had acted fairly toward the beneficiary and had fully carried out the duties of trustee; that the deed was dated June 19, 1918, and the period of fifteen years mentioned therein expired June 19, 1933; that the trustor was still living and therefore the trust had expired and terminated; the name and address of the beneficiary; that the trustee had received 5 per cent of the gross income as its compensation but that its attorneys had received no compensation and that they were entitled to reasonable compensation for services rendered. Notice was given of the hearing to Mary Bauer and she appeared by counsel and filed "Objections to Final Account and Petition of American Trust Company". Her pleading set forth the following: She alleged that the Hellwig trust had not expired nor terminated and that it was still in full force and effect;