Brunton v. Shnell

WOOD (W. J.), J. This is an appeal by the administrator with the will annexed of the estate of John W. Lair, deceased, from an order of the probate court dated November 29, 1940, settling the account of John W. Lair as trustee of the estate left by his wife, Nancy Ray Lair. By her will Nancy Ray Lair left the bulk of her estate to John W. Lair in trust, he to have the income therefrom for life, the corpus to go to certain beneficiaries named in the will. The estate was probated and distribution was made to John W. Lair as trustee on September 10, 1936. John W. Lair presented his first account as trustee which was settled by the court on August 15, 1939. In settling this account the court found: “It is true that on September 10,1936, the said John W. Lair, as trustee under the will of Nancy Ray Lair, deceased, the following personal property in trust, which said property the court finds to have been proceeds of rents from the corpus of said trust estate. Cash in the sum of ......55.11.” Respondents had made objections to the account as filed but they did not object to the charge of the item of $55.11 as proceeds of rents from the corpus of the estate. The principal objection made by respondents was to a charge of $850 which had been made a lien upon the corpus of the estate during the progress of administration and before distribution to the trustee. The trial court sustained the of respondents to this charge of $850 and the trustee [224]appealed from the ruling. This court on May 6, 1940, decided the appeal in favor of the trustee, held that the charge of $850 should be made against the corpus of the estate and directed the superior court to settle the account in accordance with the views expressed in the opinion. (Estate of Lair, 38 Cal. App. (2d) 737 [102 P. (2d) 436].) Upon the receipt of the remittitur the superior court filed new findings in which the said sum of $55.11 was found to be a part of the corpus of the trust estate.

The trustee has appealed from the following portion of the decree of November 29, 1940: “It is further ordered adjudged and decreed that save and except the deed of trust hereinafter referred to, which is an encumbrance against lot 14, in block 18, of the Central Subdivision of block 17 and 18 of the Barrett Villa Tract, the property hereinafter mentioned shall at all times be kept free and clear of all liens, charges or encumbrances, and that the said John W. Lair, as such trustee, shall not, at any time, make any disbursement to himself, as surviving spouse of said decedent, of any of the income from the said trust estate until after the payment of all expenses for the maintenance of said properties and the expenses of the administration of said estate.”