Wheeler v. First National Bank

SHENK, J. The plaintiff sued the trustee of an express trust and the beneficiaries thereof for an accounting, a declaration of the rights and duties of the respective parties under the trust provisions, and other equitable relief. From the judgment rendered the plaintiff appealed. No reporter’s transcript was filed. The appeal is presented on the clerk’s transcript and the briefs of the respective parties.

In February, 1929, John L. Wheeler and Louise A. Wheeler, the parents of the plaintiff, Sheldon C. Wheeler, entered into a declaration of trust whereby they conveyed to The First National Bank of Santa Ana certain described real and personal property, to hold for the benefit of the trustors in their lifetime, and thereafter for the benefit of their son and the brothers and sisters of John L. Wheeler. The real property consisted of a forty-acre orange grove situated in Orange County subject to a $50,000 mortgage, and a residence in Santa Ana subject to a $4,000 mortgage. The personal property consisted of money on deposit to the trustors’ account in the trustee bank; ranch equipment, machinery and tools; household goods and jewelry; certificates repre[187]senting 1,000 shares of stock of Merchants Petroleum Company ; five shares of Farmers and Merchants Savings Bank of Santa Ana; and six life and accident insurance policies issued on the life of John L. Wheeler.

Louise A. Wheeler died on November 13, 1930, survived by her cotrustor, John L. Wheeler. The only provisions of the trust declaration which are pertinent in this controversy are those which bear upon the happening of the contingency of the death of Louise A. Wheeler survived by John L. Wheeler.

Paragraph 5 of the trust declaration provides that upon the happening of that contingency, John L. Wheeler should be permitted to withdraw from the trust corpus all the household furniture, automobiles, and the jewelry, clothing and personal adornments of Louise A. Wheeler. The property remaining in the trust was then to be divided into two equal parts to be known as subdivisions “A” and “B”. John L. Wheeler was given the right to manage both parts and upon his written request at any time after three months following the death of Louise A. Wheeler, he had the right to withdraw from the trust the portion thereof comprising subdivision “A”. .He was permitted to retain all the income from both parts while they remained in the trust and to continue to receive the income from subdivision “B” should he withdraw subdivision “A”. It was further provided that thereafter, should subdivision “A” and the income from subdivision “B” be insufficient for his support and comfort, he should receive sufficient amounts of the principal of subdivision “B” as the trustee in its uncontrolled discretion should deem necessary and advisable, but payments of principal from subdivision “B” could not be made to him so long as there remained in his possession any part of subdivision “A”. The declaration of trust contained provisions for the distribution of subdivision “B” to Sheldon C. Wheeler and to the brothers and sisters of John L. Wheeler upon the latter’s death, which it is not necessary to notice specifically. The controversy here is concerned only with the propriety of the withdrawal by John L. Wheeler of a portion of the trust estate following the death of Louise A. Wheeler.