Estate of Taylor

• Decision Date: 26 March 1970
• Citation: 6 Cal.App.3d 16,85 Cal.Rptr. 474
• Parties: In the Matter of the ESTATE of Reese H. TAYLOR, also known as Reese Hale Taylor, Deceased. James Marshall TAYLOR and Margaret Elizabeth Taylor Cave, Objectors and Appellants, v. UNION BANK, Co-Trustee, Petitioner and Respondent. Civ. 35179.
• Court: California Court of Appeals Court of Appeals

Page 474

85 Cal.Rptr. 474

6 Cal.App.3d 16

In the Matter of the ESTATE of Reese H. TAYLOR, also known as Reese Hale Taylor, Deceased.

James Marshall TAYLOR and Margaret Elizabeth Taylor Cave, Objectors and Appellants, v. UNION BANK, Co-Trustee, Petitioner and Respondent.

Civ. 35179.

Court of Appeal, Second District, Division 3, California.

March 26, 1970.

Hearing Denied May 21, 1970.

Hahn & Hahn and J. Kenneth Cameron, Pasadena, for objectors and appellants.

Gibson, Dunn & Crutcher and John T. Pigott, Los Angeles, for petitioner and respondent.

COBEY, Acting Presiding Justice.

James Marshall Taylor and Margaret Elizabeth Taylor Cave, the beneficiaries of two testamentary trusts created by the will of their father, Reese H. Taylor, deceased, appeal from those portions of an order entered February 24, 1969, allowing the co-trustee of the trusts, Union Bank, additional compensation in the amounts of $6,900 and $6,790, chargeable against their respective trust estates.

This additional compensation represented essentially the difference between compensation at the rate of 3/4 of one percent of the reasonable value of the trust estates, the claimed customary rate of compensation awarded by the trial court generally, and the 1/4 of one percent specified in both the will and decree of distribution which had become final several years previously. It was also approximately the same rate of compensation as the court had approved in the settlement of the second account. This settlement had been uncontested and covered 1965. ¹

The bank sought this additional compensation in a separate petition. Its petition was granted over the written objections of the two beneficiaries that the additional compensation was in excess of that specified in the will as previously and finally interpreted by the probate court and without a proper equitable showing therefor. An evidentiary hearing of the petition and the objections was held on January 22, 1969.

THE APPEALABILITY OF THE ORDER

The notice of appeal was filed with the clerk of the superior court on June 13, 1969. Under Code of Civil Procedure section 904.1(k) an appeal may be taken from an order or decree of that court made appealable by the provisions of the Probate Code. Section 1240 of the Probate Code now provides that an appeal may be taken from, among other things, an order 'fixing, directing or allowing payment of a trustee's compensation.' But this type of order was made an appealable order by an amendment to the section which took effect on November 10, 1969. (See Stats.1969, ch. 272.) The bill containing this amendment does not include any language indicating that this amendment was intended to operate retroactively. Under these circumstances the amendment may be given only prospective effect. (See DiGenova v. State Board of Education, 57 Cal.2d 167, 172--173, 18 Cal.Rptr. 369, 367 P.2d 865.)

However, section 1240 has provided for many years that an order settling an account of a trustee is appealable. Although the order before us was not part of the order settling the third account of the co-trustees for the period covered, roughly 1966 and 1967, the bank's petition for the order under appeal was presented at the same time as the third account and may, we believe, for purposes of appeal be treated as if it had been physically a part thereof which ordinarily it would have been. ² Furthermore, the compensation at issue was for services rendered by the bank as co-trustee during the period covered by the third account, namely, roughly 1966 and 1967. Finally, the purpose of the aforementioned 1969 amendment to section 1240 appears to have been to make appealable those orders fixing the compensation of trustees that are made at times other than the settlement of an account. This purpose would indicate that orders fixing a trustee's compensation on settlement of an account were already appealable. ³ (See 1968--69 C.A.J.Rep., 45 State Bar J., 688--89.) In the light of the foregoing considerations it would be preferring form to substance to hold the instant order nonappealable by reason of its form alone. (See Civ.Code, § 3528; cf. Estate of West, 162 Cal. 352, 356, 122 P. 953; Estate of Bissinger, 60 Cal.2d 756, 768--769, 36 Cal.Rptr. 450, 388 P.2d 682.) The order fixing the bank's compensation was, in legal effect, part of the settlement of the co-trustees' third account and should be so treated. As such the order was appealable.

THE PROPRIETY OF THE COMPENSATION

Since November 8, 1967, the compensation of testamentary trustees in this state has been governed by Probate Code section 1122, as rewritten that year. (See Stats.1967, ch. 661, p. 2031.) This statute since that time has always read in pertinent part as follows:

'If the will contains provisions for a trustee's compensation, the trustee shall be entitled to be compensated in accordance therewith. Upon proper showing, the court may * * * allow greater compensation than could be allowed under the provisions of the will (1) where the duties of the trustee are substantially greater than those contemplated by the testator at the time of the signing of the will, or (2) where the compensation in accordance with the provisions in the will would be so unreasonably low that a competent trustee would not undertake to administer the trust, or (3) in other extraordinary circumstances. * * *'

The quoted wording originated in the 1965--66 Report of the State Bar Committee on Administration of Justice. (See 41 State Bar J. 761.) An earlier draft permitting generally the award of compensation greater than that specified in the trust instrument only in extraordinary circumstances had been opposed by the California Bankers Association. (See 1964--65, C.A.J.Rep., 40 State Bar J. 564.) The final wording, which we have quoted, was intended to permit the courts to relieve against major inequities. It, nevertheless, recognized that provisions for fixed compensation are, at least, in the nature of contractual obligations which should not be lightly modified. ⁴ (See 1965--66 C.A.J.Rep., 41 State Bar J. 761.)

Appellants contend that, as rewritten in 1967, section 1122 is merely a codification of the pre-existing equitable powers of the courts with respect to the compensation of fixed fee trustees as declared in Estate of Bissinger, Supra, 60 Cal.2d 756, 761--764, 768, 769--770, 36 Cal.Rptr. 450, 388 P.2d 682. ⁵ A study of the origin of the rewriting of the statute belies this. The fundamental intent of those rewriting the statute was to provide a more liberal basis for additional compensation of a fixed fee trustee than that provided by Bissinger. (See idem 1965, 40 State Bar J. 564; idem 1966, 41 State Bar J. 761--62.)

Appellants further contend that the evidence in support of the order under appeal was insubstantial and did not meet the standards of proof specified by Bissinger, supra, 60 Cal.2d at 770--771, 36 Cal.Rptr. 450, 388 P.2d 682. We do not believe that these exacting standards necessarily control proceedings under section 1122 as rewritten. But, on the other hand, we do not accept the bank's argument that since appellants waived findings, we may not inquire into the substantiality of the evidence supporting the order when that evidence is, as here, part of the record on appeal. (See Childers v. Childers, 74 Cal.App.2d 56, 59--61, 168 P.2d 218, hear. den.; Baker v. Baker, 98 Cal.App.2d 424, 426, 220 P.2d 576, hear. den.) Nevertheless, we recognize that in this state of the record every intendment is in favor of the order. (See Bekins Van Lines, Inc. v. Johnson, 21 Cal.2d 135, 137, 130 P.2d 421.)

An examination of the evidence received below shows that the order under appeal rests on the second alternative ground specified in section 1122 since no evidence was apparently offered expressly in support of either of the other two grounds. ⁶ This ground is that the compensation specified in the will is so unreasonably low that a competent trustee would not undertake to administer the trust. An experienced trust officer of the bank, who was in charge of the administration of the Taylor trusts, testified that the bank's currently disseminated fee schedule called for a 3/4 of one percent rate of compensation for full services to trusts of the approximate size of the Taylor trusts; that this rate was competitive and in line with those of other banks in the Los Angeles area; that she had never heard of or seen a fee schedule of any other bank or trust company in Southern California which proposed publically a fee of 1/4 of one percent for such full services and that the bank would not then accept a trust specifying a 1/4 of one percent rate as its compensation as trustee. ⁷ This was the only relevant evidence offered by the bank in support of its petition. Appellants offered no evidence in opposition or rebuttal.

In deciding whether the foregoing evidence constitutes substantial evidence of the existence of the second ground specified in section 1122, we must bear in mind that substantial evidence is evidence that reasonably inspires confidence, is of solid value, and is substantial proof of the essentials which the law requires in a particular case. (See People v. Bassett, 69 Cal.2d 122, 138--139, 70 Cal.Rptr. 193, 443 P.2d 777.) Here the experienced trust officer's testimony established that the 3/4 of one percent rate sought by the bank was its applicable going rate of compensation that this rate generally prevailed among banks in the Los Angeles area, that she did not know of any rate of 1/4 of one percent (the rate of compensation specified in the will) publically disseminated by any bank or trust company in Southern California and that the...