Gear v. McLellan

KNIGHT, J. The plaintiff, Mary Grace De Gear, brought this suit -in equity to recover from- the defendants, Asa D. McLellan and Frank L. McLellan, the sum of $486.65. The complaint was filed January 24, 1938; but the defendants, evidently awaiting the outcome of other litigation involving a question of liability similar to that here sued upon, did not file their answer until December 20, 1940, and several months thereafter they moved for judgment on the pleadings. The motion was granted, and plaintiff appeals.

The controversy has its origin in the settlement of the es[383]tate of Mary Belle McLellan, deceased, which took place in the Superior Court of San Mateo County. The decree of final distribution was entered therein on January 23, 1928, and the present suit was instituted in said court ten years later. It was based on allegations to the effect that by said decree the sum of money sought to be recovered was distributed to defendants, whereas it should have been distributed to plaintiff as interest on a testamentary trust fund of which she was beneficiary. It is apparent that under the decisions rendered on three former appeals, namely, Estate of McLellan, 14 Cal.App.2d 271 [57 P.2d 1338]; Estate of McLellan, 8 Cal.2d 49 [63 P.2d 1120], and McLellan v. McLellan, 17 Cal.2d 552 [110 P.2d 1034], all of which involved the question of the liability here sued upon, it was mandatory on the trial court herein to grant defendants’ motion.

The factual situation may be stated as follows: The decedent, Mary Belle McLellan, died testate on January 15, 1927. By her will, after providing for the payment of several specific legacies, she created three separate trusts and directed that the income therefrom and such portions of the principal as the trustees deemed necessary and advisable be paid to the beneficiaries for their maintenance and support, with the remainder upon the death of the beneficiary to others. Plaintiff was named as beneficiary of the first trust, Leonard E. Mc-Lellan of the second, and Mary Bates McLellan was named as beneficiary of the third trust, with the remainder upon her death to Asher Bates McLellan. The defendants and Edgar W. McLellan (who died in August, 1935) were named in the will as trustees, and they were also made executors and residuary legatees. The decree of final distribution was entered, as stated, on January 23, 1928, whereunder, after directing the payment of the specific legacies, certain sums of money were distributed to the trustees to be used in the manner directed in the will, and the residue was distributed to said trustees as residuary legatees. No appeal was taken from said decree, and thereafter the trust funds were administered as directed by the terms of the will and the decree. Seven years after the decree became final, and on June 7, 1935, the trustees as such filed an account, and at the settlement thereof plaintiff and Asher Bates McLellan (the remainderman of the third trust, the beneficiary having died), asserted for the first time that the trustees were chargeable with interest on the trust