Estate of Hardy

62 Cal.App.2d 958 (1944) Estate of CLARA B. HARDY, Deceased. LESTER E. HARDY, Appellant,

v.

CALIFORNIA TRUST COMPANY, as Executor, etc., Respondent.

Civ. No. 14278. California Court of Appeals. Second Dist., Div. One.

Feb. 18, 1944. Lester E. Hardy in pro. per., and Victor A. Gillespie for Appellant.

Reynolds & Painter for Respondent.

DORAN, J.

This is an appeal from an order of the superior court denying appellant's petition for partial distribution.

The deceased, Clara B. Hardy, executed her last will and testament on April 19, 1927. She died July 17, 1942. The will recited, "Second: I declare that I am a widow, and that I have one child living, to-wit, a son, Lester Edwin Hardy." Following certain bequests, the pertinent part of the will provided, "(c) I direct that my said Trustee shall pay all of the net income from said trust estate to my said son, Lester Edwin Hardy, in such installments as my Trustee shall determine, as long as my said son shall live. (d) Upon the death of my said son, I direct that said trust shall terminate, and that all of the trust property then remaining in the hands of said Trustee shall be paid and distributed to my heirs-at-law, according to the Statute of Descents of the State of California, as the same shall then exist."

The court found as a fact that deceased "left no surviving spouse or issue or descendant of deceased issue except the petitioner, Lester E. Hardy, who is her sole surviving issue"; that petitioner had theretofore filed a petition to revoke the probate of said will; that said petition was denied. The court concluded as a matter of law that the wording of the will establishes a valid trust.

It is appellant's contention that the trust created by the [960] will is invalid and that therefore distribution under the laws of succession should be ordered. It is also contended that the will provides for an unlawful accumulation of income.

[1] It is argued by appellant that the trust is invalid because although the death of the beneficiary terminates the trust, nevertheless, the will further provides that "the trust property then remaining in the hands of said trustee shall be paid and distributed to decedent's heirs at law." Thus, it is argued, the power of alienation is suspended between the date of the death of Lester E. Hardy and the date of payment. The contention is without merit. The will expressly provides that the trust shall terminate upon the death of Lester E. Hardy; and the intention of the testatrix, thus clearly expressed, must be carried out. If any trust could be said to exist after Lester Hardy's death, such trust would merely be one imposed by law because of the circumstances then prevailing. The resulting trust thus arising would be distinct from the testamentary trust created by Mrs. Hardy's will; and the testamentary trust could not therefore be said to extend beyond the life of Lester E. Hardy; and the resulting trust, if any, would not be within the statute against perpetuities. (See Estate of Steele, 124 Cal. 533, at 540 [57 P. 564]; Estate of Hamon, 136 Cal.App. 517, at 520 [29 P.2d 326].) Upon the termination of every trust it is the duty of the trustee to pay over the corpus of the trust to those entitled thereto; and since the will clearly provides that the trust shall terminate upon the death of Lester E. Hardy, the fact that the will also provides that the trust property remaining in the hands of the trustee shall be paid and distributed to decedent's heirs at law is without any greater significance than in the case of any such trust for the life of a particular individual.