Secor v. Corbin

California Court of Appeal Sep 28, 1959 No. Civ. No. 23682Published

Before: Herndon

AI Brief

AI-generated · verify before citing

Holding. The court held that the appellant was not entitled to trust income by implication because the testator's will contained a clear condition precedent that was not met, and the court cannot rewrite a will to address omissions.

Issues

Whether the appellant is entitled to trust income by implication under the terms of a testamentary trust.
Whether the trial court correctly interpreted the testator's intent regarding the distribution of trust income.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The intent to make the gift which appellant claims does not clearly appear from the trust instrument.”

“The court cannot, under the guise of construction, make a will for the testator in place of the one he has made.”

“Where a specific condition must be fulfilled or performed prior to the vesting of an interest, the condition is a condition precedent.”

HERNDON, J. Ben A. Secor appeals from an order of the probate court denying a petition by which he sought to establish his right to receive maintenance and support under the terms of a testamentary trust created by his grandfather’s will. The will of Ben M. Kincaid, duly admitted to probate in 1952, left all of the testator’s property to respondent Edward B. Corbin in trust for the following uses and purposes:

“A. The trustee upon evidence of want satisfactory to him shall pay to, use or apply or expend for the reasonable maintenance, comfort, and support, or for expense of accident, illness, or other misfortune of my wife Rose N. Kincaid and my daughter Helen (Kincaid Secor) Rathbun such sums as in the discretion of the trustee may be necessary to be so expended.

“B. Should my daughter Helen (Kincaid Secor) Rathbun predecease me then and in such event my said Trustee shall upon evidence of want satisfactory to him pay, use, apply or expend for the reasonable maintenance, comfort and support, or for the expense of accident, illness, or other misfortune of my grandson Bennie Secor such sums as in the discretion of the Trustee may be necessary to be so expended.

“C. Upon the decease of Bennie Secor the remainder of the estate shall be distributed to the children of Bennie Secor or survivors thereof upon reaching their majority—If Bennie Secor should die without leaving any issue then the remainder of the estate shall be distributed by said Trustee to such educational, religious, or charitable organizations that are qualified to receive such bequests and which my said Trustee in his opinion deems worthy thereof.”

The testator was survived by his widow, Rose Kincaid, his daughter, Helen Rathbun, and his grandson Ben Secor, appellant herein. Appellant, the son of Helen Rathbun, is married but has no issue. Respondent Corbin is here in his [86]capacity as trustee and also as the duly appointed guardian ad litem of the unborn issue of the appellant. Both the widow and the daughter of the testator died during the pendency of the probate proceedings, the latter on May 3, 1954, and the former on July 6, 1954. During probate and prior to their respective deaths the widow and daughter received payments from the executor for their “maintenance, comfort and support” in conformity with the terms of the will.

The decree of distribution by which the testamentary trust was established was entered on June 8, 1956. The above-quoted language of the will, declaring the terms and purposes of the trust, was carried into the decree in haec verba.

Secor v. Corbin

AI Brief

More from California Court of Appeal

Related research

AI Brief