Graves v. Rickershauser

LANGDON, P. J.

The controversy between the parties hereto out of which this appeal grows has been before this court on other appeals. They are all concerned with the attempt of the plaintiff to collect money due her from the defendant Florence E. Bickershauser. A very brief recital of facts will indicate how tortuous has been the road toi that end.

In the year 1915 the defendant Florence Bickershauser, being heavily indebted, transferred all her property to the defendant Thomas McMahan, who executed a declaration of trust, declaring that he held same for the benefit of certain creditors of Florence Bickershauser, named therein, whose aggregate claims amounted to §28,978. The plaintiff, Amy Graves, was not included in this list of creditors. She brought an action against Florence Bickershauser in the superior court of Los Angeles County and obtained a judgment for §3,474.24. Thereafter, in August, 1917, plaintiff purchased at the sale under execution issued upon said judgment the beneficial interest of Florence Bickershauser in said trust property, if any there was, after the satisfaction of the purposes of the trust, i. e., the payment of the debts specified therein. The net purchase price of said interest— $2',583.56—was credited upon plaintiff’s judgment. It was found that in July, 1917, McMahan, as trustee, sold the trust property to the defendants Susie M. Kibbe, Frank Bickershauser and Charles Bickershauser, children of Florence Bickershauser, for the sum of $33,641.85. The court found that this amount was necessary to discharge the purposes of

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the trust. It appears that debts amounting to nearly $29,000 were specified in the trust instrument and the testimony is that the balance was consumed in legal fees and expenses in connection with litigation involving the trust property and other legitimate expenses connected with the administration of the trust. There is nothing to contradict this testimony and the trial court accepted it as true. It is, perhaps, not so satisfactory as if the items had been specified in detail by the witness, but it is, nevertheless, the- only testimony on the subject appearing in the record.

Appellant contends that even though the amount allowed for taxes, interest and expenses be conceded to be correct, there is still $3,000 representing Mrs. Rickershauser’s beneficial interest which should belong to the plaintiff because of her purchase of such beneficial interest. This claim is made because the trustee actually received $36,641.85, or an excess of $3,000 over and above the amount necessary for the debts and expenses. Appellant asserts that this $3,000 was actually part of the consideration for the trust property, and being in excess of the debts to be paid by the trust fund, it represented the beneficial interest of Florence Rickershauser, plaintiff’s debtor.