Berry v. Lebus

KERRIGAN, J.

The complaint alleges that the plaintiff is the daughter of Martha C. Lebus, deceased; that her maiden name was Elizabeth Lebus; that formerly she was the wife of C. S. Holman, but subsequently married Thomas H. Berry; that she has two children, one being of the age of seventeen years and the other of the age of fourteen; that Martha C. Lebus died intestate in the city of Los Angeles in September, 1918, leaving as her only heirs at law said plaintiff and defendants Bertha Lebus, Orrie Lebus, and Clarence Lebus; that Bertha Lebus is the duly qualified and acting administratrix of the estate of the deceased. It further appears from said complaint that the deceased was, and her heirs at law now are, the owners and entitled to the possession of the property affected by the present litigation; that on the twenty-second day of September, 1917, Martha C. Lebus devised a plan for the creation of a trust in said property to endure beyond the lives in being at its creation and affected thereby, contrary to the provisions of section 715 of the Civil Code; that on the twenty-second day of September, 1917, said Martha C. Lebus executed to the defendant, the Title Insurance and Trust Company, a declaration of trust upon said property and which is described in the

[380]

complaint; that under the terms thereof upon her death said property was to vest in Bertha Lebus, Elizabeth L. Holman, Orrie Lebus, and Clarence Lebus, and in the event of the death of any of these prior to such vesting, except in the case of Elizabeth L. Holman, the interest of the one so deceased was to pass to her issue; or, if no issue, then to his devisees or legatees, or, in case of intestacy, then to those entitled to take under the laws of succession then in force in the state of California.

Paragraph VII of the said trust is in part as follows: ■

“Should said Elizabeth L. Holman not be living at the date of the death of Martha C. Lebus during the life of this trust, as aforesaid, or upon the death of said Elizabeth L. Holman after the vesting in her of said one-fourth of said trust estate, then said interest of said Elizabeth L. Holman in and to said trust estate shall thereupon pass to and vest in the children of said Elizabeth L. Holman, share and share alike—the issue of any child of said Elizabeth L. Holman, deceased, to take the share of the parent by right of representation,