Walker v. Kessler

FOX, J. Mrs. Dorothy Walker Kessler died in Arcadia, California, in April, 1946. She was survived by her daughter, Karen, then aged 3, and by her husband, Howard M. Kessler. By her will Mrs. Kessler provided for a trust for the use and benefit of her daughter, with Mr. and Mrs. Fred Walker, parents of Mrs. Kessler, as trustees. The will was admitted to probate and in due course the trust was established. In August, 1952, the value of the corpus of the trust was $66,000 and the average annual income was $2,000.

By the terms of the will and the decree of the probate court the trustees were directed “. . . to use the income from the [385]Trust for the care, maintenance, care and education of Karen Dee Kessler, and the said Trustees in their sole discretion may use as much of the principal for the purpose of caring for said Karen Dee Kessler as the said Trustees shall deem proper and advisable.” The trust is to terminate when Karen reaches 30 years of age, and the trust estate, is to be turned over to her. If she dies before then, distribution is to be to her issue. In the event she should leave no issue the trust funds go to her father, the respondent.

Since the establishment of the trust in January, 1948, only a little over $1,000 has been paid for the use and benefit of the child. This was between July, 1948, and July, 1949, when she was in the care of a Mrs. Rosebroek and the trustees were permitted to see her. Payments ceased, however, when the father took Karen to Cleveland, Ohio. Thereafter the trustees saw the beneficiary only once, when they journeyed to Cleveland for that purpose. At the time of the hearing she had been returned to California but the trustees had not been so informed. She resides with the respondent, her father, his mother, and the latter’s husband, in a six-room single family residence.

In July, 1952, the trustees filed their petition alleging, among other things, that Mr. Kessler was interfering with their carrying out the trust by his refusal: (1) to divulge the whereabouts of the child; (2) to permit the trustees to see or visit the child to ascertain her welfare; and (3) to permit any funds to be expended for her support and benefit. The trustees sought instructions and requested the court to exercise its powers toward the fulfillment of the trust by ordering Mr. Kessler, among other things, to disclose the address of the child and to permit reasonable visitation by them “as trustees, within the scope of their duties.” In his response Mr. Kessler revealed that Karen was living in his home and that it was agreeable to him that the trustees make payments from the trust for Karen’s benefit “if such payments are made on a mutually satisfactory basis,” but he would not consent to their seeing her.