San Diego Public Library v. Bank of America

Opinion

COUGHLIN, Acting P. J. Petitioners, San Diego Public Library and the State of Israel, appeal from the denial of their petition, pursuant to [719]Probate Code section 584, for an order directing objector, Bank of America National Trust and Savings Association, as executor, to purchase an annuity.

The will of Herbert Feuereisen and a codicil were admitted to probate on July 1, 1969; designated the Bank of America, i.e., the objector, as executor; bequeathed his brother $100; devised and bequeathed all of the remainder of his property to the Bank of America in trust for the purpose of paying his sister Mathilda Feuereisen $270 per month for the rest of her life; directed the trust should continue until his sister’s death and upon termination the trust assets should be “paid over” to San Diego Public Library and State of Israel, one-half thereof to each; authorized the trustee to invest and reinvest the trust property in designated common stocks; and prescribed the amount of compensation payable to the trustee. The estate consisted of bonds, corporation stocks, savings and loan accounts, small bank deposits and personal items, appraised at $121,359.52. After the time for filing creditors’ claims had expired and the first account current of the executor had been approved, the San Diego Public Library and the State of Israel petitioned the court for an order directing the executor to purchase an annuity from Beneficial Standard Life Insurance Company of Los Angeles for the sum of $56,700, under which Mathilda Feuereisen would be paid $270 per month for life and upon her death $54,000 would be paid to and divided equally between the petitioners. Although the petition does not seek immediate distribution of the remainder of the estate, i.e., the amount thereof over $56,700, it is alleged the purchase of the annuity will save trustee’s fees and enable petitioners to receive the remainder of the estate “instead of leaving it unnecessarily in trust.” The petition asserts the court should order the executor to purchase the annuity on the basis proposed therein regardless of the consent or objection of Mathilda Feuereisen or the Bank of America.

The Bank of America, as executor, filed objections to the petition and, through its attorney, appeared at the hearing. Mathilda Feuereisen made no response to the petition or appearance at the hearing.1 The court found, among other things, the testator intended to create a trust under his will for the primary benefit of Mathilda Feuereisen, and the showing made by petitioners did not constitute good cause why the court should exercise its discretion under Probate Code section 584 to authorize the purchase of a commercial annuity.