Amphlett v. Johnson

PETERS, P. J. By his will Horace W. Amphlett created a trust for the benefit of his wife, his father and his three sisters. The decree of distribution distributed the trust property to the trustees named in the will to hold upon the trusts declared therein, without attempting to construe the provision of the trust now in controversy. The present proceeding was instituted by the widow to obtain a construction of the trust provision. (Sec. 1120 et seq. of the Probate Code; Estate of Smith, 4 Cal. App. (2d) 548 [41 Pac. (2d) 565].) The other beneficiaries also requested a construction of the provision in dispute. All parties, being dissatisfied with the construction given to the provision by the trial court, have appealed on a single bill of exceptions, the widow appealing from certain portions of the decree, and the other appellants from the entire decree. The widow contends that she has greater rights than the court’s decree allows her, while the father and three sisters contend that she is entitled to less.

The trust provision which is the subject of dispute is as follows:

“My said trustees during the life of this trust shall pay the net income from this trust monthly, if practicable, but in any event at intervals of not to exceed three (3) months, as follows:

“The first Three Hundred Fifty Dollars ($350.00) per month to my wife, Eleanor Amphlett. Then to my sisters, Janet E. Amphlett, Kathleen M. Amphlett and Helen Amphlett Clinton, and my father, Richard M. Amphlett, share and share alike, the amount then remaining until each of them shall have received Three Hundred Fifty Dollars ($350.00) per month, and the balance then remaining, share and share [553]alike, to my wife, Eleanor Amphlett, my said sisters and my father, Richard M. Amphlett, or the survivors of them.”

There is no dispute but that, under the trust provision, the widow receives a preferential right to $350 per month from the income of the trust, if the income is sufficient. It is conceded that deficiencies in income cannot be made up from the corpus. The question presented is as to the extent of the preference granted the widow. The basic problem presented is whether, if income from the trust is less than $350 in any one month, the deficiency must be paid to her from income exceeding that amount received by the trustees in later months.

The trust property consists of all of the issued and outstanding stock of the Amphlett Printing Company, appraised at $105,252, and the residue of the estate. Included within the residue, and distributed to the trustees as part of the trust, were five promissory notes of the printing company representing debts owed the estate, totaling $19,000. The balance of the estate was either specifically bequeathed, was consumed in paying the debts of the decedent, in paying the expenses of administration, in paying the widow a family allowance, or was set aside to the widow as exempt property. The will was executed about three months before the testator’s death, which occurred on November 29, 1933, and, by its terms, the trust is to terminate ten years from the date of death. Upon termination of the trust the corpus is to be divided equally among the five beneficiaries.