Security First National Bank v. Joslyn

STEPHENS, J. This is an appeal from an order filed August 13, 1965, instructing a trustee, as authorized by Code of Civil Procedure, section 963, subdivision 3, and Probate Code, section 1240.

The facts are that on December 27. 1949, the Alice N. Joslyn testamentary trust was established, and M. L. Joslyn was appointed trustee. On June 30, 1963, M. L. Joslyn died. M. L. Joslyn died testate, and b;r his will appointed Robert D. MacDonald (hereinafter MacDonald) as successor trustee in said Alice N. Joslyn trust (hereinafter termed trust). MacDonald petitioned for appointment as successor trustee; this petition was heard on June 5, 1964, and was opposed. By its order of June 10, 1964, the court found the trust was without trustee and that MacDonald was the appointee successor trustee under the will of M. L. Joslyn, original trustee; further, that by stipulation of attorneys representing the parties, “all requirements of notice relative to the proceeding were waived” and that “in the event the order denied the petition of Robert D. MacDonald, the Security First National Bank (Santa Monica branch) [hereinafter termed the Bank] . . . would be accepted as an interim trustee of said . . . trust ...” The court then ordered the MacDonald petition denied “pending determination whether he has been or should be appointed successor trustee” and that the Bank “is appointed interim [674]trustee of . . . trust pending determination whether Robert D. MacDonald has been or should be appointed successor trustee. ’ ’

At the time of the hearing, the court accepted a stipulation waiving notice as required by the provisions of section 1126 of the Probate Code.1 This stipulation was joined in by attorneys representing each of the parties, including the attorney for appellant M. N. Joslyn.

By the June 10, 1964, order, the court determined the Bank was an interim trustee under appointment there and then made. No appeal was taken from this order. On June 28, 1965, the Bank petitioned for instructions. On August 11, 1965, Joslyn filed a declaration stating that at the time of the June 5, 1964, hearing he was not personally present, and at no time waived notice. On August 13, 1965, following a hearing, the court found that all notices (of the August 13, 1965 hearing) had been “duly given as required by law," and ordered that the Bank: “. . . pending determination whether Robert D. MacDonald has been or should be appointed successor trustee, is instructed that under the order of this court dated June 10, 1964, appointing it ‘interim trustee’ of said testamentary trust, it is a ‘successor trustee’ within the meaning of that term as used in said testamentary trust and as such it has all of the rights, powers, authorities, and discretions of the trustee originally named therein." Appeal is from this August 13, 1965, order.