Mayhew v. Gallagher
Before: Angellotti
Synopsis
Trust under Will — Power of Sale by Executor — Trust as to Proceeds—Termination—Improper Order Pilling Vacancy.—It is essential to an order appointing a trustee under a will to fill a vacancy under section 2289 of the Civil Code, that there should be an existing trust to be executed; and where the will creating the trust devised no land to the trustee, but merely empowered the executor to sell the land without an order of court, and made him trustee only to invest the proceeds for the benefit of two grandnieces until they attained majority, which they had both attained, an order appointing a new trustee, after the death of the former trustee, to complete the contract of sale at the instance of the purchaser, was improper.
Id.—Estoppel of Beneficiaries—Confirmation of Sale—Remedy in Probate Proceeding.—The estoppel of the beneficiaries to dispute the contract of sale, by acceptance and retention of the proceeds thereof, cannot be inquired into on a proceeding to fill a vacancy in the appointment of a trustee; but the proper remedy for the enforcement of the contract of sale is by a confirmation thereof ia the probate proceeding, which is necessary to perfect the title of the purchaser upon fulfillment of the contract, and if the only persons interested in the proceeds of such sale have so ratified the contract that they are estopped to dispute it, the court may upon that ground confirm the sale and direct a conveyance on compliance by the purchaser with the terms of the contract.
ANGELLOTTI, J. This is an appeal from an order of the superior court of Monterey County, made under the provisions of section 2289 of the Civil Code, appointing a trustee in place of the deceased trustee, “to fulfill and complete the [215]purposes of the trust and to complete the contract set out in the petition of the petitioner.” The trust in question was claimed to have been created by the last will of Jane Walker, the provisions of said will which are material being as follows, viz.:—
Third—“I desire that my lot commonly known as lot No. 3 in block 41 of the Second Addition to Pacific Grove, Monterey Co., state of California be sold as soon as an advantageous price can be obtained for the same and that William F. Gibson, whom I hereby appoint as trustee for that purpose shall invest the proceeds in some income producing property or first mortgage security and pay the proceeds to my grandnieces Sadie and Nannie Mayhew, one half thereof to each. I desire that such income shall be paid to Sadie and Nannie Mayhew directly, so that they can use the same themselves; and a receipt from them to my said trustee shall be sufficient to relieve him from any further responsibility therefor. When my said grandnieces shall attain their majority, then I direct my trustee to pay over said trust fund or deliver the investment to said grandnieces. If either shall die previous to attaining her majority, the survivor shall take her sister’s portion. ’ ’
Seventh—“I give my executor hereinafter named full power to sell any and all of my estate real and personal as he may deem expedient at either public or private sale and without first obtaining an order of court therefor. ...”
Eighth—“I hereby appoint William F. Gibson of the city and county of San Francisco, state of California, as executor of this my last will and request that he be allowed to qualify and to act as such without giving bonds to any court.”
This will was dated January 10, 1895, and deceased died in the year 1897, a resident of the city and county of San Francisco. Such will was admitted to probate in the superior court of such city and county, and the proceedings for the administration of the estate are still pending therein, no distribution as yet having been had.
William F. Gibson was appointed and qualified as executor of the will, and continued to act as such until his death in 1901. On February 4, 1899, he, purporting to act as executor and trustee, agreed in writing to sell to respondent, Mrs. Annie L. Gallagher, the lot of land described above for eight
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