Opinion
Rehearing Denied Feb. 25, 1931
Hearing Granted by Supreme Court March 30, 1931.
Appeal from Superior Court, Los Angeles County; William Hazlett, Judge.
In the matter of the estate of John James Troy, deceased. David H. Howie and others, executors of the last will and testament of John James Troy, filed final account and report, and Helen Troy, individually and as guardian of the person and estate of James Storrow Troy, a minor, filed exceptions to the account, and to the distribution of the estate as prayed for. From that portion of the judgment ordering estate distributed under the intestacy laws, separate appeals were perfected by Helen Troy and others, as executors, David H. Howie and another, as trustees, and by the Trustees of Dartmouth College, a residuary legatee under the will.
Affirmed.
COUNSEL
Lawler & Degnan, of Los Angeles, for appellants executors and trustees.
Seiler & Seiler, of Long Beach, for appellants Trustees of Dartmouth College.
Farrand & Slosson, of Los Angeles, for respondent.
OPINION
YORK, J.
This is an appeal from that portion of the judgment of the superior court which ordered the estate of said decedent distributed under the intestacy laws of this state. Separate appeals have been perfected by Helen Troy, David H. Howie, and V.H. Rossetti, as executors, David H. Howie and V.H. Rossetti, as trustees, and the Trustees of Dartmouth College.
John James Troy died in the city of Boston on the 17th day of October, 1927. He left surviving him his widow, Helen Troy, and an infant son, James Storrow Troy. In his last will and testament, bearing date of November 6, 1924, he appointed his wife, Helen Troy, David H. Howie, and V.H. Rossetti, as executors. To administer the trusts, provided for in the will, he nominated David H. Howie and V.H. Rossetti as trustees. The Trustees of Dartmouth College were included among the beneficiaries of a testamentary trust.
The will was admitted to probate in Los Angeles county on the 23d day of November, 1927. The executors qualified and fully administered the estate down to the point of distribution. The final account and report of the executors was filed on the 10th day of April, 1929. Prior to the hearing thereon, Helen Troy, individually, and as guardian of James Storrow Troy, a minor, filed exceptions to the account and to the distribution of the estate as prayed for. In excepting to distribution, Helen Troy, individually and as guardian, contended that the trust provisions of the will were void as suspending illegally the power to alien the trust estate.
At the hearing the final account of the executors was settled and confirmed, but exceptions to distribution were allowed, and the estate was directed to be distributed under the intestacy laws of this state.
After the provisions in the will directing payment of his debts and funeral expenses, the testator made two specific legacies which are here in controversy. The residuum of his estate he devised in trust as follows:
"Third: All the rest, residue and remainder of the property of every nature and description which may belong to me at my death I give, devise and bequeath to the trustees hereinafter named, in trust, to have and to hold to them and their successors in trust for the following purposes:
"(a) If my wife survive me, to pay to her, at least as often as semiannually, the entire net income of the trust fund during her lifetime.
"(b) On the death of my wife, or upon my death, if my said wife shall not survive me, if there are children of mine then living or then deceased leaving issue then living, to divide the trust property into as many equal shares as there are children of mine then living and then deceased leaving issue then living, the issue of any deceased child of mine to stand in the place of such deceased child by right of representation.
"(c) If at that time any child of mine shall have reached the age of twenty-one (21), to pay over to such child one of such shares free from all trusts. If at that time all the issue of a child of mine then deceased shall have reached the age of twenty-one (21), to pay over to such issue in equal shares one of such shares.
"(d) To retain the shares not so distributed in trust, and to expend all or so much of the net income of each of such shares as the trustees in their uncontrolled discretion shall deem best for the comfortable maintenance, support and education of each of such children or the issue of any child of mine then deceased until such child or all of the issue of any child of mine then deceased shall reach the age of twenty-one (21). When and as any child of mine shall reach the age of twenty-one (21), and when and as all of the issue of any child of mine then deceased leaving issue shall have reached the age of twenty-one (21), to pay over to such child or the issue of any child of mine then deceased leaving issue one of such shares free from all trusts.
"(e) If any child of mine surviving both my wife and me shall die before reaching the age of twenty-one (21) leaving issue, the issue of such child shall take the share such child would have taken if such child had reached the age of twenty-one (21). If any child of mine surviving both my wife and me shall die before reaching the age of twenty-one (21) leaving no issue then surviving, the share such child would have taken if he had reached the age of twenty-one (21) shall be distributed in equal shares among the children of mine then living or then deceased leaving issue, such issue to take in equal shares by right of representation.
"(f) Upon the death of my wife or upon my death, if my wife shall not survive me, if there are no children of mine then living or then deceased leaving issue then living, to pay over to David H. Howie, of Cambridge, Massachusetts, if he be then living, two-thirds of the trust property then held by them free from all trusts, and to pay over to the Trustees of Dartmouth College located at Hanover, New Hampshire, the remaining one-third of the trust property, or if said David H. Howie be then not living, all of the trust property then held by them free from all trusts, to be held by said Trustees of Dartmouth College as a separate fund to be known as the ‘John J. Troy Fund.’ I place no restriction upon the use which the said Trustees shall make of said fund, but it is my wish that if the income or any part of the principal thereof shall not, in the opinion of said Trustees, be required for other and better uses, the income thereof shall be used to aid needy and worthy students in college who may apply therefor or for scholarship aid generally. It is my wish, although I do not express this as a restriction, that the income be used in aid of needy and worthy students without regard to their scholastic standing provided the Trustees believe the applicant is of good moral character and is making a conscientious effort to avail himself of all the privileges and opportunities afforded him by the College."
It is contended by the respondent that the trust provisions contained in said will are not severable, and that they violate the provisions of sections 715 and 716 of the Civil Code, as construed by the Supreme Court of this state in the Estate of Whitney, 176 Cal. 12, 167 P. 399; Estate of Van Wyck, 185 Cal. 49, 196 P. 50; and Estate of Maltman, 195 Cal. 643, 234 P. 898. The appellants admit the illegality of the provisions of subdivision (d) of paragraph third of said will, but seek to avoid present intestacy on the ground that such illegality is merely a contingent illegality, contingent on James Storrow Troy predeceasing his mother, leaving issue. They also contend that the illegal provisions are severable, and that the court can construe the trust in accordance with the remaining provisions thereof, and that the trust thus provided will be in accordance with the law, as construed in the cases hereinabove mentioned, and, in addition thereto, in conformity with sections 1317 and 1326 of the Civil Code; Estate of Cavarly, 119 Cal. 406, 51 P. 629; Estate of Walkerly, 108 Cal. 627, 41 P. 772, 49 Am.St.Rep. 97; Estate of Phelps, 182 Cal. 752, 763, 190 P. 17; Estate of Pichoir, 139 Cal. 682, 686, 73 P. 606; Nellis v. Rickard, 133 Cal. 617, 66 P. 32, 85 Am.St.Rep. 227.
It is the opinion of this court that the said invalid conditions of the trust are not severable from the others, and that, if the said provisions which are admittedly in violation of the laws of this state should be omitted, it would so affect the entire plan of the trust that the trust as contemplated by the testator would be left incomplete. To hold otherwise would be to make by decree a trust not created by the testator.
The entire trust was evidently drawn with the idea that the deceased might live a long time after the execution thereof, and that possibly he would leave several children and grandchildren. As a matter of fact, at the time of the hearing for final distribution, his only child was then of the age of 5 years, and the trust provisions of the will clearly provide that, in case of the death of said child before said child is 21 years old, and before the death of the child’s mother, if the child leave issue, the entire estate, except the income thereof, shall be held and cannot be distributed until all of such children shall have reached the age of 21 years. Also it provided in said trust that, in case of the death of said mother and of said son during his minority, leaving issue, the whole estate is to be held in trust and cannot be distributed until the youngest child of such named son shall reach the age of 21 years.
Under the authority of the Code provisions and cases herein cited as being relied upon by respondent and petitioner, we think that the decree is correct.
The said order and decree are affirmed.
We concur: CONREY, P.J.; HOUSER, J.