Reset A A Font size: Print

District Court of Appeal, Second District, Division 2, California.


Civ. 13568.

Decided: June 18, 1942

Winterer & Ritchie, of Los Angeles, for appellant. Ralph G. Miller, of Los Angeles, for plaintiff and respondent.

This is another companion case to Larrabee v. Tracy et al., 126 P.2d 947, and Salvation Army v. Security–First National Bank of Los Angeles, 126 P.2d 953. The appeal is submitted upon a single record made in this and the cases mentioned, notwithstanding they were not consolidated in the court below for trial. In the instant case, however, neither the issues nor the errors assigned are the same as in the two cases mentioned. The questions here are two, viz.: (1) whether this action for declaratory relief was maintainable, and (2) whether attorney fees could properly be allowed to respondent Security–First National Bank of Los Angeles.

The facts upon which the questions involved turn are these: On August 7, 1930, Mark H. Rice conveyed all the real estate he then owned to the Security–First National Bank of Los Angeles, and the latter, on its part, executed and delivered its declaration of trust to evidence the trust upon which it had received title to the property involved. By the terms of the trust document it was recited that the trustor should have the exclusive possession and use of the trust estate during his life without rental or other accounting therefor to the trustee, but that the latter should, on the trustor's death, distribute the trust estate as the trustor, might designate in his last will. Upon the death of the trustor the trustee, anticipating that the estate would be promptly closed by appellant, the executor who had been named by the will and appointed as such by the court, consented that the executor might take possession of and manage the real estate involved in the trust and account to it for rents, issues and profits. At intervals between the date of the appointment of the executor in 1931 and the filing of the instant action for declaratory relief in the court below the trustee made numerous demands upon the executor that he close the estate. Not only did the executor fail to accede to these demands, but, after he had filed his third account current and had procured from the probate court its approval and an adjudication that Edith Larrabee was not entitled to any portion of the estate, he made demand upon the trustee, both in his capacity as executor and as residuary legatee, that the trustee assign and transfer the trust estate to the parties found entitled thereto by the construction placed by the probate court upon the will of Rice. Inasmuch as Edith Larrabee had contended that the adjudication by the probate court was void, she made demand upon the trustee that it assign and convey to her the interest which, by the terms of the will, her mother would have received if living at the time of the trustor's death. In view of these adverse claims made upon it, the trustee instituted in the court below the instant action for declaratory relief, asking an adjudication of the rights of the parties involved in this appeal and its duties in the premises. In its complaint it averred, among other things, that it had been required to retain counsel to institute the action and present it to the court, and so it prayed that it might be awarded a reasonable sum with which to compensate its attorney, payable out of the trust fund. It will suffice to say that appellant, by his answer, averred that the will had been construed by the probate court; that that court had held Edith Larrabee had no interest in the estate; that such adjudication was binding upon her and upon the trustee, and by reason thereof there was no occasion for an action for declaratory relief. The answer further averred that attorney fees as prayed were not allowable in a declaratory relief action. With this preliminary statement as to the factual situation we turn to the contentions which are here made by appellant.

First. It was the duty of the trustee to distribute the trust estate as directed by the last will of the trustor. In the performance of that duty it was entitled, where it was faced with divergent claims of a character possessing legal substantiality, to safeguard itself against legal liability caused, not by any act of its own but by that of others. The adjudication which had been made by the probate court on an intermediate account was not final except as to the parties over which the court had jurisdiction and to the extent that distribution had been made under the probate court's order. As the trustee was not made a party to the probate proceedings, or served with process, the probate court's order did not bind it nor estop it from seeking in equity an adjudication of its duties as the trustee of an express trust. As to that trust the probate court possessed no jurisdiction. That there was a substantial, actual legal controversy between Wellman, in his capacity as executor and as residuary legatee, and Edith Larrabee is plain. The trustee, accordingly, was entitled to bring and maintain its action for declaratory relief.

Second. The contention here made by appellant that the trial court was without authority to allow attorney fees in a declaratory relief action is readily answered. The trustee sought such fees, not on the theory that it was entitled to them in a declaratory relief action as such, but by virtue of the fact that it was a trustee of an express trust, and therefore under Civil Code section 2273 entitled to be reimbursed out of the trust estate for its expenses, including attorney fees, which were properly incurred by it in executing the trust. It is not open to debate that the statute mentioned permits of an allowance of the character of that which is here involved. In re Duffill's Estate, 188 Cal. 536, 206 P. 42.

Appellant's further contention that the findings went beyond the issues is of no significance, as the findings the trial court made on the issues necessarily involved in the action are adequate to sustain its judgment. Other errors assigned, which have not been argued, require no notice on our part.

Judgment affirmed.

HANSON, Justice pro tem.

MOORE, P. J., and McCOMB, J., concurred.