Opinion
Rehearing Denied Jan. 28, 1941
Hearing Granted Feb. 27, 1941
Appeal from Superior Court, San Luis Obispo County; Ray B. Lyon, Judge.
Proceeding in the matter of the estate of Angela L. Marre, deceased, wherein Stephen Milton Piuma filed a petition seeking, among other things, that Henry L. Minetti and another, trustees, be directed to pay him certain sums of money for his care and maintenance covering a period subsequent to decedent’s death and before the entry of the decree of final distribution. From an order directing the trustees to pay petitioner further sums of money, Henry L. Minetti and another appealed to the Supreme Court, and that court transferred the appeal to the District Court of Appeal for decision pursuant to article 6, § 4c of the Constitution.
Reversed.
See, also, 108 P.2d 693.
COUNSEL
Dockweiler & Dockweiler, of Los Angeles, for appellants.
Canepa & Castruccio, of Los Angeles (Horace W. Danforth, of Los Angeles, of counsel), for respondent.
OPINION
McCOMB, Justice.
This appeal, transferred from the Supreme Court to this court for decision, pursuant to the provisions of article VI, section 4c of the Constitution of the State of California, is from an order of the superior court sitting in probate, directing the trustees of a testamentary trust to pay petitioner further sums of money for his maintenance covering a period subsequent to decedent’s death and prior to the entry of the decree of final distribution.
After directing distribution to Henry L. Minetti and Isidore B. Dockweiler of all of the rest, residue, and remainder of her estate in trust, the will of decedent contained, among others, the following provisions:
"(c) From the rents, issues, profits, interest and dividends of said trust estate said trustees shall pay all taxes, assessments and other charges imposed by public authority on the property of said trust estate or any part thereof, all income taxes on the income thereof, all expenses of upkeep, maintenance, protection and insurance of said property, and all other proper costs and expenses of the administration of said trust; and all income remaining after such payments is hereinafter designated ‘net income’.
"(d) Said trustees shall during the existence of said trust, either monthly, quarterly or semi-annually, as the circumstances and conditions of said trust estate will the most conveniently permit, but in any event annually, distribute and pay out of the net income of said trust estate such part thereof as said trustees shall in their sole judgment deem advisable to or for the proper care, maintenance, support and education of my said grandson Stephen Milton Piuma so long as, in their sole judgment, his education is incomplete, and the balance, if any, of said net income to my daughter Rosa J. Marre Piuma; and when, in the sole judgment of said trustees, the education of my said grandson is complete, then said net income shall be distributed and paid out as follows: One-half (½ ) to or for the proper care, maintenance and support of my said grandson Stephen Milton Piuma, and one-half (½ ) to or for the proper care, maintenance and support of my said daughter Rosa J. Marre Piuma; provided, that if my said daughter Rosa J. Marre Piuma should die ***
"(e) In the event that said net income be at any time insufficient for the proper care, maintenance, support and education of my said grandson Stephen Milton Piuma, or for his proper care, maintenance and support, or for the proper care, maintenance and support of my said daughter Rosa J. Marre Piuma, then I hereby authorize, empower and direct my said trustees hereunder to use from time to time so much of the principal of said estate as may in their sole judgment be necessary or proper for such care, maintenance, support and education or such care, maintenance and support of my said grandson, or for such proper care, maintenance and support of my said daughter."
The final decree of distribution was entered December 21, 1937. Respondent March 6, 1939, filed a petition seeking, among other things, that the trustees be directed to pay him certain sums of money for his care and maintenance subsequent to decedent’s death and prior to the entry of the final decree of distribution. It is from the order allowing this portion of respondent’s petition that the present appeal is taken by the trustees.
This is the sole question necessary for us to determine:
Where a will bequeaths and devises "the rest, residue, and remainder" of decedent’s estate in trust as to both net income and corpus for the proper "care, maintenance, support and education" of a minor grandson, and the will provides for no specific cash legacy to such grandson, are necessary expenses incurred by said beneficiary for his care, maintenance, and support before the final decree of distribution is entered properly payable by the trustees of such trust after distribution, in the absence of a provision in the will either (1) directing the executors or trustees to make such payments or (2) creating an annuity?
This question must be answered in the negative. The will did not expressly direct the executors or trustees to make payments to the beneficiary commencing as of the date of the death of decedent, nor does the will create an annuity, for the reason that there was not a bequest of a certain or definite sum to respondent. Estate of Watson, 32 Cal.App.2d 594, 599, 90 P.2d 349; Clayes v. Nutter, 49 Cal.App. 148, 151, 192 P. 870. Likewise the will provided that "from the rents, issues, profits, interest, and dividends of said trust estate" said trustees should, after making specified payments on account of taxes, etc., "pay out of the net income of said trust estate such part thereof as said trustees" should "in their sole judgment deem advisable to or for the proper care, maintenance, support, and education" of respondent.
From the foregoing it is clear that it was the intention of the testatrix that payments from the fund which she directed to be created were not to be made to respondent until after distribution of her estate to appellants as trustees thereof. It needs no citation of authorities to sustain the proposition that, where a testamentary trust is created and the will does not create an annuity or direct the executor or trustee to make payments to the beneficiary prior to the decree of final distribution, the beneficiary is entitled to receive only such payments as are provided in the trust. In the present case, since neither of the conditions above mentioned existed, respondent was entitled to receive money for his care, maintenance, and support from the trustees subsequent to the date of the decree of final distribution and not before.
The facts in the present case are analogous to those in the cases of Clayes v. Nutter, supra, and Estate of Watson, supra, wherein it was held that payments to a beneficiary of trusts created for their care and maintenance commence not at the date of the death of decedent but after final distribution of the decedent’s estate to the trustees and the creation of the trust.
For the reasons stated in the cases just mentioned, which it would serve no useful purpose to here repeat, the probate judge was in error in making the allowances from which an appeal has been taken. Estate of Dare, 196 Cal. 29, 235 P. 725, and other cases relied upon by respondent are each factually different from the instant case and, therefore, inapplicable to the problem here presented.
The portion of the order here appealed from is reversed, appellants to recover their costs.
We concur: MOORE, P.J.; WOOD, J.