First National Bank v. Faris

BARNARD, P. J. This is an appeal from that part of a decree of distribution which interprets the will as creating a trust and distributes the property to a trustee.

The material part of the will in question reads as follows:

‘ ‘ Secondly : I leave all my estate, property and effects, real, whatsoever and wheresoever situated of which I may die seized or possessed to my beloved Son, James William Paris, to be turned over to him at the time he becomes (25) twenty-five years of age.

“Until then the estate to be handled by the executors of this will, my (Brothers, Lloyd H. Michael, and Edward T. Michael) paying James William Paris as much per month as they deem advisable.

[516]“In event my Son, dies leaving, no children, then this property (my whole estate) to be divided in thirds (a) one-third to my Brother Lloyd H. Michael, (B) one-third to my Brother Edward T. Michael. (C) one-third to my brother Wilford M. Michael.”

The first paragraph directed the payment of debts. The third and final paragraph nominated executors.

The order and decree settled the final account, found that the law required the appointment of a trustee in order to carry out the trust created by the will, and appointed the respondent bank as such trustee. It then distributed the estate to this trustee with directions to pay to James William Paris during the period of his minority a reasonable sum for his maintenance; to pay him the net income after he attained the age of majority; and to “distribute” to him all of the corpus of the estate with any remaining income when he shall have attained the age of 25 years.

The sole contention of the appellant is that no trust was created by the terms of the will and that the remaining estate should be distributed directly to him as guardian of James William Paris. The appellant relies on McCloud v. Hewlett, 135 Cal. 361 [67 P. 333] and Estate of Ogden, 78 Cal.App. 412 [248 P. 680]. Other cases are also cited which require no consideration. It is argued that the facts in Estate of Ogden are on all fours with those in the instant case, and that McCloud v. Hewlett is in direct conflict with Estate of Yates, 170 Cal. 254 [149 P. 555], relied on by the respondent.

We are unable to see that Estate of Ogden is on all fours with the instant case. In that case, the first words giving the property were not qualified. Not only was a trust not mentioned but the executors were not even authorized to hold the property or to do anything with it. There was no “gift over” provision in the event of the death of the devisees. Moreover, it was conceded that the decree should be reversed.