Alfred R. Johnston, as Executor and as Heir, Appellant.* v. <<

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District Court of Appeal, Second District, Division 1, California.

ESTATE of Anna M. JOHNSTON, Deceased. Alfred R. Johnston, as Executor and as Heir, Appellant.*

Civ. 21614.

Decided: August 01, 1956

Leland J. Allen, Los Angeles, for appellant.

This is an appeal from the order settling the first account current, decreeing preliminary distribution, fixing statutory and extraordinary fees of the executor and the attorney and interpreting the will of decedent.

Appellant contends that the trial court erred in (1) finding that no trust estate is created under the terms of the will; (2) fixing the statutory fees of the executor and the attorney for the executor pursuant to the law in effect prior to September 7, 1955 snd (3) striking from the account current any reference to the real property and royalty interests in Texas.

The provisions of decedent's will, insofar as they are pertinent to this appeal, are as follows:

‘Seventh: I direct that my farm at Hopkinton, Iowa be sold, if this has not been done before my decease, and the proceeds added to the value of my estate. All other assets to be held and administered by the Executor of my estate, until they liquidate themselves.

‘Eighth: After the payment of the above set out cash bequests, I hereby direct that the Reformed Presbyterian Church Board of Foreign Missions of North America whose address is 209 Ninth Street, Pittsburgh, Pa., is to receive an undivided one-fourth interest of my entire estate, personal and real wherever situated, including the cash balance on hand after the payment of just debts, cash bequests and taxes. In case this Board ceases to exist, then in that event the remainder of such interest is to pass to the Presbyterian Church Board of Foreign Missions of U. S. A., whose address is 156 Fifth Avenue, New York City, N. Y.

‘Ninth: The remainder of my estate shall be distributed as follows:

‘a) One-third to my sister Mary Ensign's three children, namely—Evelyn Leininger, Russell Ensign and Elizabeth Groot, share and share alike. In case any one of the above named children of my sister Mary Ensign shall predecease me or before the final distribution of my estate, then in that event their respective share or shares shall be paid to their lawful issue, share and share alike.

‘b) One-third to my brother James Johnston's nine children, namely—William Johnston, Elmer Johnston, Gracia Wimmer, Dorothy Moulton, Alfred Johnston, Harlan Johnston, Forrest Johnston, Bruce Johnston and Lorraine Shedeck, share and share alike. In case any one of the above named children of my brother James Johnston shall predecease me or before the final distribution of my estate, then in that event their respective share or shares shall be paid to their lawful issue, share and share alike.

‘c) One-third to my brother William Johnston's four children, namely—Alice Fehlman, Clemna McIlrath, Ruth Johnston and Walter Johnston, share and share alike. In case any one of the above named children of my brother William Johnston shall predecease me or before the final distribution of my estate, then in that event their respective share or shares shall be paid to their lawful issue, share and share alike.

‘Tenth: I do specifically and intentionally omit to provide for any other person or relative, as it is ny specific intention to leave my property to be distributed as previously set forth * * *.’

The trial court found that ‘the Will contains no words sufficient to create a trust in the assets of the estate.’ Appellant maintains that the language contained in paragraph Seventh of the will, providing that ‘All other assets to be held and administered by the Executor of my estate, until they liquidate themselves.’ clearly indicates that it was the desire of the testatrix that the assets of the estate remain intact until they ‘liquidate themselves' and that such desire is further emphasized by the succeeding paragraph in which she directs that the Reformed Presbyterian Church Board of Foreign Missions of North America ‘is to receive an undivided one-fourth interest of my entire estate, personal and real wherever situated * * *.’

Appellant contends that the trial court should have held that the will created a trust in the remaining assets of the estate and that the desire of the testatrix can only be carried out by the appointment of the executor as trustee.

A will is to be construed according to the intention of the testator and where his intention cannot have effect to its full extent, it must have effect as far as possible. Probate Code, § 101; In re Estate of Akeley, 35 Cal.2d 26, 28, 215 P.2d 921, 17 A.L.R.2d 647; In re Estate of Foley, 126 Cal.App.2d 810, 812–813, 273 P.2d 26; In re Estate of Spence, 57 Cal.App.2d 922, 925, 135 P.2d 419. A will must be read as a whole; all parts thereof are to be construed together and in relation to each other so as to form, if possible, a consistent whole, In re Estate of Northcutt, 16 Cal.2d 683, 689, 107 P.2d 607; In re Estate of Spence, supra; In re Estate of Foley, supra, and, a will should be interpreted, if possible, in such manner as to prevent intestacy. In re Estate of Sewall, 14 Cal.App.2d 554, 555, 58 P.2d 744.

If the will in the instant case were construed as creating a trust, such trust would be void since it would clearly violate the rule against restraints on alienation.

Section 715.1 of the Civil Code provides: ‘The absolute power of alienation cannot be suspended, by any limitation or condition whatever, for a period longer than 21 years after some life in being at the creation of the interest and any period of gestation involved in the situation to which the limitation applies. The lives selected to govern the time of suspension must not be so numerous or so situated that evidence of their deaths is likely to be unreasonably difficult to obtain.’ Section 771 of the Civil Code provides: ‘The suspension of all power to alienate the subject of a trust, other than a power to exchange it for other property to be held upon the same trust, or to sell it and reinvest the proceeds to be held upon the same trust, is a suspension of the power of alienation, within the meaning of Section 715.1.’

It is not the probability of a violation of the rules against remoteness or restraints on alienation that brings such rules into operation, but only the bare possibility as such possibility exists at the date of the inception of the trust. In re Estate of Sahlender, 89 Cal.App.2d 329, 348, 201 P.2d 69; In re Estate of Gump, 16 Cal.2d 535, 547, 107 P.2d 17. As stated in Sheean v. Michel, 6 Cal.2d 324, at page 328, 57 P.2d 127, at page 129: “‘The statute does not permit us to wait and see whether events may not so transpire that in fact no perpetuity (suspension) results, but if under the terms of the deed or will creating the trust, when properly construed, the instrument ‘by any possibility may suspend’ the absolute power of alienation beyond the continuance of lives in being, the instrument, whether a deed or will, is void, and no trust is created nor any estate vested in the trustees.' In re Estate of Steele, 124 Cal. 533, 537, 57 P. 564.' In re Estate of Whitney, 176 Cal. 12, 15, 16, 167 P. 399, 401; In re Estate of Maltman, 195 Cal. 643, 649, 234 P. 898; In re Estate of Troy, supra, 214 Cal. 53, at page 57, 3 P.2d 930.'

To the constitution of every valid express trust it is essential that there should be a trustee, an estate conveyed to him, a beneficiary, a legal purpose, and a legal term. While equity will in some instances make good the absence of the first requisite, if the estate conveyed, or the beneficiary be lacking, or there be no legal purpose or legal term, the trust must fail. In re Walkerly's Estate, 108 Cal. 627, 650, 41 P. 772. Where a trust is void as an illegal restraint upon alienating, no title or right is acquired either by the trustee or any of the beneficiaries. If the trust is void, as to the property attempted to be devised in trust, the testator died intestate. In re Walkerly's Estate, supra, 108 Cal. at page 660, 41 P. 772; Booge v. Reinicke, 45 Cal.App.2d 260, 265, 114 P.2d 427.

However, taking the will as a whole, it appears clear that the testatrix did not intend to create a trust. No trustee is named, nor are the powers of the trustees set forth. No purpose is stated and there is no definite term fixed. At most, the language directing that all other assets be held and administered by the executor of her estate ‘until they liquidate themselves' indicates a desire on the part of the testatrix that final distribution of her estate be delayed by the executor until such time. On the other hand, in paragraph Eighth of her will she directs that after the payment of certain cash bequests, the Reformed Presbyterian Church Board of Foreign Missions shall receive an undivided one-fourth interest of her entire estate and in paragraph Ninth directs that the remainder of her estate ‘shall be distributed’ to certain named nieces and nephews. Such provisions point only to outright distribution, free from any trust. Therefore, the finding of the trial court that the will contains no words sufficient to create a trust in the assets of the estate is correct.

Appellant's next contention is that the statutory fees of the executor and the attorney for the executor should be fixed on the basis of the law in effect at the time of the settlement of the account and making the order allowing compensation and not on the basis of the law in effect at the date of death. The question as to which law governs the fixing of the compensation for executors of the estates of decedents whose death occurred prior to the effective date of the amendment of September 7, 1955 to section 901 of the Probate Code was determined by us in the Estate of Edward J. Franklin, deceased, decided July 30, 1956, wherein we held that such fees should be computed on the basis of the law in effect at the time of the settlement of the account and making the order allowing compensation. Therefore, in the instant case the fees of the executor and the attorney for the executor should have been computed under section 901 of the Probate Code, as amended September 7, 1955.

Finally, appellant contends that the real property and oil royalties in Texas should be included in his account and that he should be allowed fees on the amount thereof. This contention is without merit. It is provided in section 901 of the Probate Code that the executor ‘shall receive commissions upon the amount of estate accounted for by him * * *.’ Section 920 of the Probate Code provides that ‘Every executor and administrator is chargeable in his accounts whth all of the estate of the decedent which comes into his possession, and with all the income, issues and profits of the estate; * * *.’ The rule is set forth in Re Estate of Simmons, 43 Cal. 543, the statutes at the time of that decision being in the same language as are the statutes now governing. The court stated, at pages 550–551, as follows: ‘We are of the opinion that an administrator cannot be said to have ‘accounted for’ an estate, in the sense of the statute, unless he shall first have taken it into possession. He is charged by the statute, as we have already seen, with the value of ‘the whole of the estate of the deceased which may come into his possession,’ etc. (Sec. 216); and it is made his duty to ‘take into his possession all the estate of the deceased, real and personal.’ (Sec. 194.) When he shall have taken the property into possession and accounted for it, he is entitled to compensation by way of commissions upon its value. Unless he take it into possession, he is not charged in his account with its value. He may, and doubtless would, incur a responsibility, should he fail to take it into possession when he lawfully might, if by such failure it should become ultimately lost to those entitled to its benefits; but as affording a basis for the allowance of commissions, the value of the estate which has been taken into possession, and having been in possession has been accounted for, is alone regarded.' See also In re Ricaud's Estate, 70 Cal. 69, 71, 11 P. 471; In re Estate of Lampman, 15 Cal.2d 212, 215, et seq., 100 P.2d 488; In re Estate of Boggs, 33 Cal.App.2d 30, 32–33 90 P.2d 814.

The executor of the domiciliary estate not having possession of the real property in Texas, is not chargeable in his account with its value and he is, therefore, not entitled to fees thereon. The trial court properly struck from the account any reference to the real property and oil royalties in Texas.

The order is reversed insofar as it fixes the compensation of the executor and the attorney for the executor upon the basis provided by law prior to September 7, 1955, and the cause is remanded with directions to the court below to enter an order in accordance with the views herein expressed. In all other respects the order is affirmed.

FOURT, Justice.

WHITE, P. J., and DORAN, J., concur.

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