Wynn v. California Bank

FOURT, J. Appellant is the daughter of Grace Hatfield, deceased, and administratrix of her estate. Said decedent was named the beneficiary of a discretionary trust under the will of William Francis Harrington, deceased. Grace Hatfield and William Francis Harrington were brother and sister.

Respondent is the guardian of Judy Farrar, a minor child. Judy Farrar is named the remainderman in the trust set forth in the will of William Francis Harrington, deceased. The wording of the clauses with which we are particularly concerned is as follows:

“Fourth : It is my intention, desire, will and my direction to my said Executor to provide for the welfare, care, support, treatment, comfort and happiness of my sister, Grace Hatfield, who now resides at 50 Esperanza Street, Sierra Hadre, California, during her lifetime, and to effectuate that purpose I give, devise and bequeath to my said Executor, Wm. Christensen', in Trust, all of my property, real, personal and mixed, and wherever situate, to be used only as hereinafter directed.

“Fifth : Said Executor shall pay out of income, or if the income be insufficient then out of principal, to and for my said sister such sums of money and at such times and in such manner as he may, in his discretion, deem to be necessary in order to so provide for her. Said Executor shall have the right to mortgage or hypothecate so much of the trust property and for such prices and upon such terms and conditions as he deems proper in order to so provide for my said sister.

1 ‘ Sixth : Upon the death of my said sister, said Executor shall pay out of the income, or if the income be insufficient then out of the principal, her expenses of last illness and burial expenses in the event that he deems her estate be insufficient to meet such expenses and shall distribute to my granddaughter, Judy Farrar, who presently resides in Grant’s Pass,- Oregon, all of the residue of my estate then remaining undistributed.

[4721] ‘ Seventh : In the event my said sister should predecease me, then and in that event I give, devise and bequeath all of my property, real, personal and mixed, to my said granddaughter. ’ ’

William Francis Harrington died March 11, 1955, and the beneficiary Grace Hatfield died on July 11, 1956, or one year and four months later. At the time of the death of Grace Hatfield no payments of any kind had been made by the executor of the estate of William Francis Harrington for the welfare, care, support, treatment, comfort and happiness of the beneficiary Grace Hatfield, and no petition had been filed for distribution to the trustee pursuant to the will.