Smith v. Bank of California, National Ass'n

THE COURT. A proceeding for a declaratory judgment construing a trust created by the will of Cora B. Smith, deceased.

The testatrix left surviving her three sons, namely, J. R. Pringle, Sidney V. Smith, Jr., and Felix T. Smith, and Cora Goold, a daughter. There also survived her four grandchildren, namely, Sidney V. Smith III, and Cora H., B. Smith, the children of Sidney V. Smith, Jr., Felix T. Smith, Jr., the son of Felix T. Smith, and Cora B. Smith, the daughter of Cora Goold. After making provision in her will for the support and education of Sidney V. Smith III and Cora H. B. Smith from specified portions of her estate she devised .the residue to- trustees, directing payment of the income therefrom to her children in like proportions during their lives. With respect to the interest of Sidney -V. Smith, Jr.,' in the residue, it was provided that the trustees should pay “ . . . one-fourth of the income of said estate to my son Sidney during his life, and upon his death to pay such one-fourth of said income to my son Sidney’s lawful issue then alive per stirpes, and, in default of such lawful issue of my son Sidney, to my lawful issue then alive per stirpes.” The will contained similar provisions with respect to Felix T. Smith and Cora Goold. It was further provided that the trust income from the residue should terminate upon the death of the longest liver of the testatrix’s children above [581]named, and the corpus then vest in her lawful issue then living per stirpes. The estate was distributed to the trustees accordingly.

The above action was brought by Elaine Grace Smith, a minor, by her guardian Elaine Smith, the latter being the divorced wife of Sidney V. Smith, Jr. Her complaint alleged that Smith intermarried with Elaine Trenberth, and that she with Sidney V. Smith IV and Cora H. Butterworth Smith are the lawful issue of the marriage. The two last named were joined as defendants with the trustees and three minors named Betty, Henry and Donna Smith. The complaint alleged that the three minors last mentioned—who appear by their guardian—have no interest in the trust estate. It was also alleged that plaintiff is the owner of the right to one-third of the income of the trust property contingent upon her surviving said Sidney V. Smith, Jr., but that the defendants deny that she is a beneficiary as alleged and that a controversy exists between the parties as to her rights therein; further, that unless her right is now determined the evidence thereof may be lost, all to her irreparable injury, and that she has no adequate remedy in the ordinary course of law.