Kelleher v. Weymouth

BRAY, J. In this appeal by the trustee from a probate court order instructing trustee, appellant claims that the order is defective in form, unintelligible and ambiguous, and that the court failed to instruct on numerous questions asked.

Record

Clarence R. Weymouth died testate in 1949. His will bequeathed 18 per cent of his estate to appellant as trustee under an agreement dated August 23, 1948, between decedent and appellant as trustee, setting up a spendthrift trust for his brother Ralph, and providing that upon Ralph’s death the trust estate then remaining should vest in a class comprised of the surviving brother and sisters of decedent or their issue (of which appellant is one), and if none of these be living, in the University of California. Provision was made for investing and reinvesting the trust funds. Among other provisions was: “(c) The trustee shall estimate as nearly as may be from past performance of investment-trusts purchased, during the business cycle, the probable average value of the trust shares, yearly income, etc. The trustee shall assume that the life of the beneficiary will be 90 years (born July 8,1884), and distribute to the beneficiary, monthly, if in need, such sums as will exhaust the trust fund at the age of ninety years.” (Emphasis added.) ' Prior to his death and on August 31, 1948, the trustor sent the trustee a letter to the effect that the trustee was to accept any statement from Ralph “as factual relative to his being ‘in need’ ” without investigation. She was asked “if agreeable” to sign an acceptance attached, which she did.

July 7, 1949, after the death of the trustor, Ralph wrote the trustee stating that he was in need of the monthly payments provided in the trust. November 2, 1949, the executor of decedent’s estate petitioned for ratable distribution and asked a number of questions concerning the will and trust agreement. On December 22, 1949, a decree instructing executor and for ratable distribution, distributing certain assets to appellant trustee and instructing the executor was filed. Stipulations answering the executor’s questions and approving this decree as to form were signed by the respective attorneys for the executor, the beneficiary, the members of [507]the Weymouth family, and the trustee. The executor had suggested that the court appoint a guardian ad litem to represent remaindermen not yet ascertained or in being. Pursuant to the stipulation the court found such appointment to be unnecessary.