In re Howard's Estate

• Decision Date: 23 May 1945
• Docket Number: 6784
• Citation: 159 P.2d 586,108 Utah 294
• Parties: In re HOWARD'S ESTATE. v. CRITCHLOW HOWARD et al.
• Court: Utah Supreme Court

159 P.2d 586

108 Utah 294

In re HOWARD'S ESTATE.

HOWARD et al. v. CRITCHLOW

No. 6784

Supreme Court of Utah

May 23, 1945

Appeal from District Court, Third District, Salt Lake County Ray Van Cott, Judge.

In the matter of the estate of John C. Howard, deceased. From an order of partial distribution on the petition of Horace P Critchlow, as executor of the will of Kathryn Howard Critchlow, deceased, W. Allen Howard and others, executors of the Howard estate, appeal.

Opinion supplemented, 108 Utah 314, 159 P. 2d 595.

Affirmed, and cause remanded.

Elias Hansen and J. T. Hammond, Jr., both of Salt Lake City, for appellants.

George A. Critchlow and Walter M. Critchlow, both of Salt Lake City, for respondent.

Larson Chief Justice. McDonough and Turner, JJ., concur. Wolfe, Justice. Wade, Justice.

OPINION

Larson, Chief Justice.

Appeal from an order of a partial distribution made by the District Court of Salt Lake County.

By the terms of the will of John C. Howard, hereinafter called deceased, his executors set up four trust funds, one for each of his four children. The will further provided that the corpus of the trust estates was to be paid to the several beneficiaries as they reached the age of 35. Under such arrangement the executors have already distributed one trust estate, and have now been ordered to distribute the second. Kathryn Howard Critchlow, one of the children of deceased and whose trust estate is herein involved, died in February, 1944, after attaining the age of 35 years. She left a will in which she named respondent as executor. At the time of her death she was not a resident of Utah. Subsequently this will was admitted to probate in the District Court of Salt Lake County and respondent, also a non-resident, was confirmed as executor. The executors of the Howard will filed a final account and petition for distribution of the John C. Howard Estate. Respondent filed objections to the account. The executors replied to such objections. Before hearing upon this account and petition, respondent served notice on the executors' attorneys that he would move the court for an order to turn over to him, as executor of the last will and testament of Kathryn Howard Critchlow, the trust fund provided for her by the will of deceased. No other notice was given as to the time or place of hearing on this motion. After hearing on the account and objections thereto and the petition for distribution, an order was made directing executors to turn over to respondent the corpus of the trust set up for Kathryn Howard Critchlow. The executors appeal, assigning as grounds for reversal:

1. That the District Court erred in ordering the trust fund or part thereof turned over to respondent before the completion of hearing on and settlement of the executors' accounts.

2. That in ordering any property of the Kathryn Howard Critchlow estate turned over to respondent, the court erred because:

(a) The court, sitting in probate, had no jurisdiction to admit to probate the will of Kathryn Howard Critchlow, a non-resident of the state, since said will had not been proved and admitted to probate in the domiciliary state of the testator;

(b) That the respondent, being a non-resident of this state, was incompetent under the statute to serve as executor. We note them seriatim.

1. In considering this question, the basic facts should be kept clearly in mind. The will of deceased, after a few specific bequests, vested the title to all property of the estate in the executors in trust for the benefit of the children. It did not create and set up the trust funds herein referred to for each of the children. It directed the executors to set up from the estate, a trust fund of not less than $ 125,000 in favor of each child of deceased; that the corpus of each trust was to be paid over to the beneficiary upon her attaining the age of 35 years; the will declaring that upon the transfer to such daughter of her interest in the trust, "the supervision and control of my executors over such trust shall thereupon cease." In 1941, the executors set up on their books, under the name of each daughter, a trust account listing thereon the cash, stocks and bonds which they thereafter in their accounts listed and denominated the trusts provided by the will; and in that year the executors filed their report and account with the court and asked authority and decree of court to distribute and pay over to the oldest child, who had attained the age of 35 years, the stocks, bonds and cash listed in their account as the Mary Howard Roberts trust. Upon hearing, the court approved the account and ordered distribution of the listed property to Mary Howard Roberts. In due course the executors filed with the court their "Final Account and Petition for Distribution of the Estate" wherein, inter alia, they listed the four trusts as the executors had set them up on their books, showing the cash, stocks and bonds allotted to each; their doings as executors, including receipts and disbursements and the prior distribution of the Roberts trust; and prayed for approval of their final account and for distribution of the estate. Since Kathryn Howard Critchlow had attained the age of 35 years, and was now deceased, they asked the court to determine to whom the property in Kathryn's trust account should be distributed; and that the property in the two other trust accounts be distributed to themselves as trustees, and the estate be closed. To this final account objections were filed by respondent. Before hearing on the account and objections thereto, without notice to anyone except the attorneys for executors, respondent filed a motion for an order directing the executors to forthwith turn over to him all property listed in the Kathryn trust account, even though he had filed objections to some of the items in that account. Upon this motion, after some hearing as to the accounts, the court ordered the executors to turn over to respondent a goodly portion of the property listed in the Kathryn trust account. To review that order the matter is brought here.

All of the property here involved passed into the possession and control of the executors under the will of John C. Howard, deceased, by virtue of their position as such executors. The will directed that they set up certain trusts for the benefit of the children of deceased, and the executors were authorized to make certain expenditures from the trusts for purposes provided by the will. The will clearly contemplated that the executors of the will should administer the trusts until distribution to the cestui que trust after she attained the age of 35 years, at which time she was to receive the corpus thereof, or until said fund was distributed to the persons named as executors in the capacity of trustees as such and the executors released. One chosen to execute the directions of will may be given two characters, that of executor and also that of trustee. But the duties of each position are independent of the other. The relation of such person to the estate upon principle must be the same as if one set of duties were delegated to one person as executor, and the other set to another person as trustee. When the same person is charged with both duties, no service is required of him as a testamentary trustee until he has performed his obligation as executor with respect to the property, and secured an order of the probate court permitting him to turn over the property, and relieving him from liability therefor. In re McDermid's Estate, 109 Or. 633, 222 P. 295. And when the same person is named as executor and as trustee he must qualify as trustee before he can exonerate himself as executor. In re Roach's Estate, 50 Or. 179, 92 P. 118; and the fact that both offices are held by one person does not give him in the exercise of one office the power that he has by virtue of the other. Goad v. Montgomery, 119 Cal. 552, 51 P. 681, 63 Am. St. Rep. 145. Executors as such are not trustees of an express trust, and the directions of the will create only such trust as is imposed by the office of executor. In re Estate of Pforr, 144 Cal. 121, 77 P. 825. Where the same person is by a will made both an executor and a trustee and required to execute certain trusts created by the will, his power and duty as a trustee does not begin until as executor he has ceased to have control over the property. Joy v. Elton, 9 N.D. 428, 83 N.W. 875; Goad v. Montgomery, supra. Where trust duties are imposed upon trustees under a will, and such persons are also named executors and qualified as such, they do not assume their position as trustees instead of executors until the court has approved their accounts as executors and ordered a distribution of the property which authorized them to credit their accounts as executors with such property as may be ordered transmitted to their accounts as trustees. In re Higgins' Estate, 15 Mont. 474, 39 P. 506, 517, 28 L. R. A. 116. The executors continue to act as such until they close the estate and cause distribution to be made to themselves as trustees. Then and not until then can their duties as trustees begin. In re Dare's Estate, 196 Cal. 29, 235 P. 725; Tuckerman v. Currier, 54 Colo. 25, 129 P. 210, Ann. Cas. 1914C, 599; Bellinger v. Thompson, 26 Or. 320, 37 P. 714; Id., 26 Or. 320, 40 P. 229; Jones v. Broadbent, 21 Idaho 555, 123 P. 476.

"Until the county court makes an order for partial or final distribution of the estate of a decedent, * * * the executor or administrator is without authority to deliver any of the estate to a trustee, and until distribution is made of part or all of the estate the trustee has no duties to perform and this is true even where, as here, the same individual is both executor and trustee." In...