MacKenzie v. Los Angeles Trust & Savings Bank

JAMES, J.

This action was brought for the purpose of securing a decree declaring void a trust created by William Mackenzie, deceased. Defendant Trust & Savings Bank was named as the trustee in the instrument of trust executed by said Mackenzie. It was also administrator of his estate. From the judgment denying the plaintiff the relief sought, this appeal was taken.

The facts were agreed upon and presented to the trial judge by written stipulation. It appears that in 1904 William Mackenzie, being the owner of a large amount of property, determined that he would then distribute to his wife and children such proportions thereof as he desired them to have, rather than to leave such distribution to be made by will. Besides his wife, there were then living this plaintiff, a daughter, who was unmarried and then and since residing at Glen Cove, New York; William Mackenzie, his son; Teanie Covey, a married daughter, and Sophia Mackenzie, an unmarried daughter. There were nine grandchildren, six being the children of the son, William Mackenzie, and three the children, of Mrs. Covey. In that year he made distribution to his wife and children, all of whom accepted the property given to them and all receipted for the same, and, in the receipt, expressed their understanding and assent that the allotment was in full of all their interest, present or future, in the estate of the husband and father, and that it was received as an advancement of their whole and entire interest in and to said estate.

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Thereafter, on the thirty-first day of October, 1905, William Mackenzie executed an instrument of trust, naming the defendant trust company as trustee, and contemporaneously therewith delivered to his trustee personal property consisting of various securities of a value in excess of ninety thousand dollars. In the trust instrument it was provided that the trustee should pay the income from the trust property to the trustor so long as he should live, and that upon his death the trustee should hold the property for the benefit of the grandchildren. On the eleventh day of November of the same year Mackenzie died. There was received by the trustee prior to the death of Mackenzie, as income, the product of the trust property, the sum of $1,133.69. This money, of course, belonged to the estate of the deceased, and in order to distribute the same thé trust company defendant was, on the twenty-ninth day of January, 1906, appointed administrator of said estate and has continued ever since to act in that capacity. On the twenty-sixth day of February, 1906, the administrator filed an inventory in the matter of the estate, showing that it had possession of property belonging to the estate in the amount hereinbefore mentioned, and on the fifteenth day of June, 1911, filed its first and final account, with petition for distribution. Notice of hearing on the account and petition was duly given, the date set being the 28th of June, 1911. About this time plaintiff employed attorneys to intervene in her behalf, and the hearing on the report and petition of the administrator was continued from time to time. Plaintiff filed objections to the account and the granting of the petition on the ground that the administrator had not charged itself with the property which it had in its capacity as trustee under the trust instrument received from William Mackenzie. This action was brought by the filing of the complaint on March 1, 1913. It will be noted that the complaint was filed more than seven years after the death of William Mackenzie and the issuing of letters of administration in his estate. In the statement of the facts it is recited “that until shortly after the time of the filing of the first and final account, report and petition for distribution in the matter -of the estate of said William Mackenzie, deceased, the plaintiff did not have actual knowledge that the defendant had not charged itself with and did not intend to charge itself with and account for the property described in the written instrument, ... as a part of the