Lally v. Kuster

[357]

BRITTAIN, J.

The defendant appeals from a judgment for $2,694 awarded as damages for negligence as an attorney in failing to prosecute diligently a mortgage foreclosure suit which was dismissed for lack of prosecution after the statute of limitations had expired on the mortgage debt. The case was tried once before and resulted in a judgment for the defendant. On the appeal of the plaintiff the supreme court reversed the judgment and in a lengthy opinion written by Mr. Justice Wilbur reviewed the essential and unchangeable facts.

(Lally

v.

Kuster,

177 Cal. 783, [171 Pac. 961].)

The essential facts are that one George Brown, the former, husband of the plaintiff, was the beneficiary of a trust under the will of his father, by which he was to come into the body of the trust estate on his reaching the age of thirty years. During the continuance of the trust • he had no' right to or control over the principal of the trust funds. Mrs. Marisco Brown, who was not related to George Brown, but who had been his nurse when he was a child, owned certain real property in Los Angeles burdened with a mortgage. George Brown, being in ill health, went to Los Angeles and made his home with Mrs. Brown, who took care of him and at times gave or advanced to him small sums of money. She was old and infirm and was disturbed by the mortgage on her property. George Brown caused her to deed the property to him, and he executed a new mortgage, which was then transferred to the trustees under his father’s will, and he then deeded the property back to her subject to the mortgage. The proceeds of the new mortgage, a part of the principal of the trust estate, were presumably used to satisfy the pre-existing debt. It is claimed by the defendant that it was the intention of George Brown to cancel the mortgage on coming into the trust property. Regardless of his intention in this regard, when the mortgage was accepted by the trustees it became a part of the trust property over which he had no control. He died before reaching the age of thirty, and the trust was thereby terminated. The trustees were required to and did turn over the trust property to George Brown’s widow, the plaintiff in this action.