Wheeler v. Citizens National Trust & Savings Bank

McCOMB, J. —From a judgment in favor of defendants after trial before the court without a jury in an action to recover the sum of $65,000 from the trustees of a trust alleged to have been paid to said trustees under a mistake, plaintiff appeals.

The evidence being viewed in the light most favorable to defendants (respondents) and pursuant to the rules set forth in Estate of Isenberg, 63 Cal.App.2d 214, 216 et seq. [146 P.2d 424], the essential facts are:

On April 11, 1941, plaintiff as trustor executed a written declaration of trust in which defendants Citizens National [355]Trust and Savings Bank of Los Angeles and John E. Wheeler were named as trustees. This declaration of trust provides, among other things, that (1) the trustor has the right to add real estate, securities, cash or other property to the corpus of the trust to be held by the trustees under the terms of the trust; (2) the trustor cannot revoke or alter the provisions of the trust, except that she reserved the right to withdraw at any time any property or money comprising part of the corpus of the trust estate, provided the aggregate of such withdrawals should not exceed the total market value of $50,000; (3) during the lifetime of the trustor the trustees are to pay to her an annuity of $12,000 a year out of the income or incomes and corpus of the trust estate; however, if the net income exceeds $12,000 in any one year, the trustees are to pay such excess to the trustor; and (4) upon the death of the trustor the trust is to terminate and the entire trust estate together with any income accrued or undistributed to the trustor on the date of her death is to be transferred, conveyed and distributed according to the trustor’s last will or, in the event she fails to exercise this power of appointment, in equal shares to her issue per stirpes, and if there are no issue to her heirs at law, in accordance with the statutes of succession of the State of California.

Approximately four months after the execution of the declaration of trust a check in the sum of $65,000 representing the proceeds of sale of certain property located in the State of Washington was prepared by Mr. Wheeler for plaintiff’s signature, naming the corporate trustee as payee. The check bore this notation: “For Helen Evans Wheeler Trust No. 8005.” (This was the number of the trust created by plaintiff on April 11, 1941.) This check was accompanied by a letter addressed to the corporate trustee reading in part thus: