Opinion
Hearing Granted Aug. 5, 1948.
Appeal from Superior Court, Los Angeles County; Raymond McIntosh, Judge.
Proceeding in the matter of the estate of John C. Ferrall, also known as John Charters Ferrall, deceased. A petition was filed by Faye F. Hamilton for an order requiring Bank of America National Trust & Savings Association and George D. Ferrall, cotrustees, to pay petitioner the sum of $10,231.46 which she had expended in addition to monies received from trust for her care and maintenance and also for sum of $450 a month to be paid from trust until further order of the court. From judgment denying respondent reimbursement for any sum she had expended but ordering trustees to pay her $400 a month from the income and principal of the estate until further order of the court, the trustees appeal. On motion to dismiss appeal.
Appeal dismissed.
COUNSEL
Earle N. Daniels, of Los Angeles, Burdette J. Daniels, of Sacramento, and Hallam Mathews, of Los Angeles, for appellants.
Potter, Potter & Rouse, of Los Angeles, for respondent.
OPINION
SHINN, Acting Presiding Justice.
Appellants, Bank of America National Trust and Savings Association and George D. Ferrall, are trustees of an estate distributed to them pursuant to the will of John C. Ferrall, deceased. Respondent, Faye F. Hamilton, who moves by her guardian to dismiss the appeal, is entitled to all of the income from the trust estate available for distribution, to be paid over monthly during her lifetime. By the terms of the trust, if at any time the income is insufficient to meet her needs, then, in the sole discretion of the trustees, they may pay her such amounts from the principal of the trust as are sufficient to meet her needs, care and comfort. Respondent will take all the property of the trust upon the death of her husband, Alex C. Hamilton, providing she survives him. Upon her death the trust will terminate and the property will be distributed one-half to George D. Ferrall, son of the testator, and one-half to three grandchildren, George D. Ferrall, Jr., John Charters Ferrall, and Frank M. Ferrall.
Respondent, an invalid, and for many years confined to a sanitarium, petitioned the court for an order requiring the trustees to pay her the sum of $10,231.46, which she had expended in addition to moneys received as income from the trust for her care and maintenance, while she was without the benefit of counsel and unaware of her right to receive allowances from the principal of the trust estate, and she petitioned also for the sum of $450 a month to be paid from the trust until the further order of the court. After due notice, the petition came on for hearing; the trustees appeared by counsel in opposition to the petition and a trial was had. The court found the facts to be as alleged by respondent and that the estate was of the present value of $27,000, consisting almost entirely of negotiable and readily liquidatable assets; that respondent has received only about $50 per month from the trust estate and that her expenses in the sanitarium amount to approximately $400 a month. It was also found that respondent’s husband was in receipt of earnings sufficient to support her. The judgment denied respondent reimbursement for any sums she had expended and ordered the trustees to pay her $400 a month from the income and principal of the estate until the further order of the court.
The grounds of the motion to dismiss the appeal are that the trustees are not parties aggrieved by the order, and therefore are not entitled to appeal therefrom (Code Civ.Proc. sec. 938), and also that the order is one from which an appeal will not lie. The first point is well taken. The trustees are not aggrieved by the order. Although trustee George D. Ferrall is one of the remaindermen, he does not appeal as such. With certain exceptions to be noted, the law is that executors, administrators, receivers and trustees are, in their official capacities, indifferent persons as between the real parties in interest; they cannot litigate the claims of one heir or claimant against those of others; they have no interest in the distribution of the estate further than for their protection; if they dispose of the property in accordance with orders of a court having jurisdiction they will be completely protected and thus they are not parties aggrieved by orders which direct them how to disburse trust funds. Estate of Williams, 122 Cal. 76, 54 P. 386; Goldtree v. Thompson, 83 Cal. 420, 23 P. 383; Estate of Wright, 49 Cal. 550; Bates v. Ryberg, 40 Cal. 463. The rule is sustained by many other authorities. The exceptions to the rule are that such representatives have a right to appeal where they may become subject to personal liability through compliance with the order or judgment, or where they have a duty to appeal in order to protect the estate which they represent. The trustees rely upon cases which come under the exceptions.
It is clear that the trustees, as such, have no interest of their own to protect. It is also clear that they have no duty to appeal. They do not represent the remaindermen any more than they represent the life tenant, and the converse, of course, is true. If it was their duty to appeal from the order in the interests of the remaindermen, because the latter considered the allowance too great, it would have been equally their duty to appeal on behalf of the life tenant if she had considered the allowance too small. This might lead to the absurd result that the trustees on the appeal would be contending that the allowance was both too great and too small. The fact is that they have no duty in the premises except to comply with the order of the court, and having no further duty, and no interest in the result, they are not entitled to appeal.
Although it has been held, in construing notices of appeal, that the words ‘administratrix of the estate of,’ following the name of the appellant, or the words ‘executrix of the estate of,’ appended opposite the name of the appellant, do not necessarily show that the appeal was intended to be taken in a representative capacity, and in the interests of justice may be considered as mere descriptio personae. Estate of Strong, 10 Cal.2d 389, 74 P.2d 231; Estate of Perkins, 21 Cal.2d 561, 134 P.2d 231. The rule has no application here. The notice of appeal states ‘that Bank of America, National Trust and Savings Association and George D. Ferrall, as co-trustees under the last Will and Testament of John C. Ferrall, also known as John Charters Ferrall, deceased, hereby appeal to the Supreme Court’ etc. Nothing could be plainer than this. The trustees must be deemed to have given the notice of appeal solely in their representative capacity and under a misconception of their duty in the premises.
The appeal is dismissed.
WOOD, J., and McCOMB, Justice Assigned, concur.