Woestman v. Union Trust & Savings Bank of Pasadena

WELLER, J.

Plaintiffs appeal from a judgment entered after a demurrer to the second amended complaint was sustained without leave to amend.

By their suit plaintiffs seek to terminate a trust created by the will of their deceased mother, Henrietta C. Woestman, in which the defendant is named as trustee. The relief is sought on two grounds: (1) That the trust was void in' its inception because attempted to be created in violation of the statute prohibiting perpetuities; and (2) that all the parties in interest consent to its termination.

The provision of the will necessary to be considered reads as follows: “Sixth: I give and devise, and bequeath all of the rest, residue and remainder of my estate, real, personal and mixed, wherever situated, of which I may die seized or possessed, or to which I may be entitled at the time of my decease, to my two boys, Walter E. Woestman and Karl 0. Woestman, share and share alike, or if either should die without issue, then to the other, the same, however, to be held in trust by the ‘Union Trust and Savings Bank of' Pasadena, ’ a corporation, created and existing under the laws of the state of California, having its principal office in the city of Pasadena, county of Los Angeles in said state, until my said boys reach the age of forty years.- And I authorize my trustee to pay out of the said trust above created, to each of my said boys, the sum of fifty dollars ($50.00) per month, during the life of said trust. ’ ’

In diie course a decree of distribution was entered, containing. the following clause: “ . . . and all the rest of

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the property of said estate is distributed to The Union Trust and Savings Bank of Pasadena, as trustee, upon the trusts stated and declared in the will of said Henrietta C. Woestman, deceased, which will is on file and of record in the office of the clerk of this Superior Court.”

The complaint alleges that, at the time of the distribution of the estate, plaintiffs were minors, and were not represented in the proceedings by counsel, but relied upon the defendant, the executor of their mother’s will, to protect their interests, and that the defendant did not advise them of the invalidity of the trust attempted to be created by the will, but, on the contrary, informed them that it was a valid trust, and • that the property should be distributed to the defendant as trustee. It further is alleged that on the hearing of the petition for distribution defendant’s counsel represented to the judge that the will created a valid trust, and thereby induced the court to enter the decree under the influence of a mistake in law affecting the court, the defendant and its attorney. Pursuant to the decree there was distributed to the defendant, as trustee, personal property to the value of about one hundred and eighty thousand dollars.