Howard v. Anglo-California Trust Co.

RICHARDS, J.

This is an appeal from a judgment in favor of the defendants.

Charles Webb Howard, in the course of the management of his accumulated properties, caused to be created, prior to the year 1903, a corporation known as the Howard Investment Company, with a capital stock of 5,000 shares, of which he retained the ownership of 4,995. In the month of October, 1903, the said Charles Webb Howard caused to be transferred to Central Trust Company of San Francisco his said 4,995 shares of the capital stock of the Howard Investment Company for certain trust purposes, among which was the requirement that out of the net dividends declared upon such shares of stock and collected by said trustee the latter was to pay, after the death of said Charles Webb Howard, certain sums of money to certain designated beneficiaries, among whom was the plaintiff in this action, who was to receive the sum of $250 per month from such source. The trust direction as to said plaintiff contained the following proviso: .“Provided that such payments to said Frederick Paxson Howard personally and while living shall be and constitute, when received by him, a waiver of all compensation for any and all services which, as an officer or otherwise, he personally may, from time to time, render to said Howard Investment Co.” It was further provided by said trust that upon the termination of the trust the said shares of stock

[166]

which were its subject, together with the balance of the income therefrom remaining in the hands of the trustee, were to go in certain specified proportions to the plaintiff and to three of the individual defendants, who were subsequently made parties to this action by order of the court.

Charles Webb Howard died in 1908. Shortly thereafter a dividend was declared upon said stock, out of which the trustee was enabled to make one payment of $250 to the plaintiff, but litigation immediately arising over the validity and subject of the trust no further dividends were declared or paid to plaintiff.

In the month of October, 1908, the Howard Investment Company adopted the following resolution: “Whereas, F. P. Howard, the President of this company, has been devoting his time to the affairs of the company, and for such time and attention no compensation has been paid him, Now, therefore, be it resolved that the said F. P. Howard, as president of this company, be paid a salary of $250 per month, commencing the 1st day of October, 1908, and be it further resolved that the Central Trust Company of California be notified that the said F. P. Howard is receiving a salary of $250 per month for services rendered to the company, and that from and after October 1st, 1908, any dividends which may be due him under that certain trust agreement made and executed by the late Charles Webb Howard be retained in accordance with the provisions made therein by which should said F. P. Howard receive a salary for services rendered, said salary should be in lieu of dividends that he might receive from the said Central Trust Company under the aforesaid trust agreement.”