Morse v. Murdock

MUSSELL, J. Julins Anderson died testate in the county of San Diego on or about November 2,1945. Amy C. Murdock, one of his daughters, was appointed executrix of his will and acted in that capacity through the administration of the estate. On March 1, 1954, she filed her second and final account, report of executrix, petition for final distribution and for instructions. Joellen Anderson Morse and William Julius Anderson, beneficiaries under the will and appellants herein, filed exceptions to the account and to the proposed plan of distribution. This appeal is taken by them from the order settling the account and from the decree of distribution.

The decedent left three children, Amy C. Murdock, Helen J. Grondona, and Albert J. Anderson. In the seventh paragraph of the will, two-thirds of the residue of the estate of decedent was divided between the two daughters. The balance of one-third of the estate was to be placed in a trust with the First National Trust and Savings Bank of San Diego, as trustee, for the benefit of Albert J. Anderson. This trust is set forth in full in the sixth paragraph of the will, which provides in substance that one-third of the residue of the estate shall be paid over to the trustee and shall be held in trust free and clear of claims of creditors of Albert Anderson, and that there shall be paid to him the income thereof, or at least $100 per month, during his lifetime, even though such payments may consume all of the corpus of the trust. After the death of Albert Anderson, the income from the remainder, if any, of the trust funds is to be divided equally between his two children, Joellen Anderson and William Julius Anderson, the appellants herein. Upon the arrival of said children at the age of majority, they are to receive the corpus of the estate, share and share alike. If said children do not survive Albert Anderson and do not arrive at the age of majority, the corpus of the estate shall be paid to the two daughters of the testator. In case the trust shall fail or be declared invalid, or be set aside by the creditors of Albert Anderson, the corpus of the trust shall be paid to the two daughters of the testator.

The controversy herein arises over the provisions of the fifth paragraph of the will. In it the testator provides, in part, as follows: “I give, devise and bequeath the business known [644]as the San Diego Steam Laundry ... to my daughter Amy 0. Murdock, in trust for the uses and purposes hereinafter in this paragraph more fully set forth. . . . The trust herein created shall continue so long as my children . . . shall remain living and my son shall be employed in said laundry, as hereinafter set forth and until such time as my children and successors in interest of either of them shall agree to the sale of said business ... I further direct that my son, Albert Julius Anderson, shall continue to be employed in his present capacity in said laundry business and shall give his full time and efforts thereto in and about the operation of said laundry and óf the financial management thereof, and that he shall be paid for his services a salary of $100 per week. Said trustee shall continue to operate said business during the term of said trust and from time to time at such times as in the discretion of said trustee are proper, shall divide so much of the net profits derived from the operation of said laundry business after the payment of salaries and expenses of operation as may be in the best judgment of said trustee not necessary for the operation of said business between the said Albert J. Anderson, the said Helen J. Grondona, and Amy C. Murdock as follows: One-half (%) shall be paid into and shall become a part of the trust hereinafter created, as set forth in paragraph sixth of this Will, one-fourth (%) of said profits shall be paid to my daughter Helen J. Grondona, and one-fourth (%) thereof to my daughter, Amy 0. Murdock. In case of the death of my son, Albert J. Anderson, the one-half (%) of the profits to be paid into the trust as hereinafter set forth shall be paid into said trust and be disposed of as provided in paragraph sixth of this Will. In ease of the death of either of my said daughters during the term of said trust, the profits otherwise payable to said daughter shall be paid to her estate. In ease of the termination of this trust by the sale of said property, then the proceeds derived from said sale shall be divided as follows: One-half (%) of said proceeds shall become a part of the trust created in the sixth paragraph of this Will and one-fourth (%) of said proceeds shall be paid to each of my said daughters, Helen J. Grondona and Amy C. Murdock, and their heirs. In case for any reason my said son, Albert J. Anderson, shall be unable to act in his present capacity in said laundry, or shall refuse to so act, then the salary provided for herein shall cease and the said trustee shall have complete authority to sell and dispose of said business and to divide the proceeds hereinbefore pro