Filed 11/21/14 Spicer v. Steward CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MILBRY ATISHA CLEYO SPICER, as Co-Trustee, etc. et al., E057114 Petitioners and Respondents, v. (Super.Ct.No. VPRVS003101)
RANDOLPH W. STEWARD, OPINION
Objector and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. Michael Welch,
Judge. Affirmed.
Randolph W. Steward, in pro. per., for Objector and Appellant.
No appearance for Petitioners and Respondents.
This is a probate action regarding the Milbry Cleyo Spicer Living Trust (the
Trust). Appellant Randolph W. Steward, who represents himself in pro. per. in this
appeal, is one of the beneficiaries of the Trust. He challenges an order of the probate
court entitled “Order After Trial Re: Co-Trustee[s’] Third Account and Report; and
Petitioner Randolph W. Steward’s Petition For Orders” (Order). In his briefing, 1 Mr. Steward has not asserted any claim of error with respect to the referenced petition for
orders, which the probate court dismissed for failure to prosecute. He has not raised any
meritorious arguments with respect to the remainder of the Order, which among other
things approves the Third Report of Co-Trustees, Petition for Attorney’s Fees and
Compensation to Co-Trustees (Third Accounting). Mr. Steward in substance raises only
a single contention, although it is stated several different ways: he believes that the two
respondent successor cotrustees of the Trust lacked the authority to act on behalf of the
Trust, including to file the Third Accounting, because a third successor cotrustee has
resigned and not been replaced.1 We disagree with Mr. Steward, and affirm.
I. FACTS AND PROCEDURAL BACKGROUND
On June 27, 2004, Milbry Cleyo Spicer established the Trust in her name,
designating herself as both grantor and trustee. Three individuals were named to serve
successor cotrustees of the Trust in the event of her death or incapacity: Charles King,
Milbry Atisha Cleyo Spicer, and Rebecca Annette Scott, also known as Rebecca Steward.
Milbry Cleyo Spicer died on December 17, 2004, and the three named successor
cotrustees assumed their roles on behalf of the Trust.
In June 2006, and again in March 2007, Mr. King and Ms. Spicer petitioned the
probate court to remove Ms. Steward as successor cotrustee, on a variety of grounds. On
January 30, 2009—following a series of continuations and a January 2009 stipulation of
the parties to hold the matter of Ms. Steward’s removal in abeyance—Ms. Steward
1 This is a line of argument Mr. Steward has also raised in a related civil appeal (King v. Steward, Nos. E052121, E055805).
2 resigned as successor cotrustee, pursuant to a settlement agreement between the parties in
the related civil action. (See fn. 1, ante.) Nobody was appointed to serve as a third
successor cotrustee of the Trust in place of Ms. Steward.
Mr. King and Ms. Spicer, in their capacity as the remaining successor cotrustees of
the Trust, filed the Third Accounting on July 14, 2010. Mr. Steward—who was then
represented by counsel—filed objections on September 28, 2010, and the cotrustees
responded. In March 2011, Mr. Steward filed a petition for orders.2 After a series of
continuances, the Third Accounting and Mr. Steward’s objections thereto, as well as
Mr. Steward’s petition for orders, were set for hearing on May 1, 2012. The Third
Accounting was heard first, with Mr. Steward (now representing himself) examining two
witnesses—Mr. King and Ms. Spicer—while Mr. King and Ms. Spicer submitted on their
papers. The hearing was continued on May 2, 2012, to hear any remaining evidence or
argument Mr. Steward might wish to present with respect to the Third Accounting, and to
hear his petition for orders. But Mr. Steward failed to appear for the second day of the
hearing, calling in to the court clerk to claim a family emergency. The court found the
purported family emergency to be a pretextual attempt to avoid having the matter
proceed, Mr. Steward’s request for a continuance having been denied the day before.
The court deemed the matter of the Third Accounting submitted, based on the evidence
and argument presented to that point, including the parties’ verified papers, and granted
2 Mr. Steward’s petition for orders does not appear in appellant’s appendix, or anywhere else in our record. Nevertheless, we glean from the reporter’s transcript that it apparently addressed at least some of the same issues as he raised in his objections to the Third Accounting.
3 the cotrustees’ oral motion to dismiss Mr. Steward’s petition for orders for failure to
prosecute.3
The court’s Order, ruling on the Third Accounting and Mr. Steward’s petition for
orders, was filed June 20, 2012.
II. DISCUSSION
Mr. Steward purports to raise three issues on appeal: (1) whether the trial court
erred in its interpretation of the Trust’s provisions regarding appointment of a successor
cotrustee; (2) whether the two remaining successor cotrustees acted in excess of their
powers because they acted without the vote of a third successor cotrustee; and
(3) whether the cotrustees “lack standing” to file the Third Accounting. Each of these
purported issues, however, is a different facet of the same basic point, namely,
Mr. Steward’s contention that the Trust requires the unanimous vote of three successor
cotrustees for any action, and following the resignation of one successor cotrustee, the
remaining two are not empowered to take any action on behalf of the Trust, unless and
until a new successor cotrustee is appointed. We disagree with Mr. Steward’s
interpretation.
“We exercise our independent judgment in construing the terms of the Trust.
[Citation.] Our primary duty in construing the Trust is to give effect to [the trustor’s]
intent. We do this by looking at the language used, interpreting words in their ordinary
3 The court noted that Mr. Steward had already examined the only two witnesses he had indicated an intention of calling to testify.
4 and grammatical sense, unless a different interpretation can be clearly ascertained.
[Citation.]” (Huscher v. Wells Fargo Bank (2004) 121 Cal.App.4th 956, 972 (Huscher).)
The Trust designates “Milbry Cleyo Spicer” as both the grantor and the trustee.
“Charles King, Milbry Atisha Cleyo Spicer . . . and Rebecca Annette Scott [also known
as Rebecca Steward]” are designated to serve as “successor Co-Trustees” in the event of
the death or incapacity of the trustee. As noted, these three individuals became successor
cotrustees on December 17, 2004, when Milbry Cleyo Spicer died.
“Unless otherwise provided in the trust instrument, a power vested in two or more
trustees may only be exercised by their unanimous action.” (Prob. Code, § 15620.) The
Trust does not provide otherwise, so this unanimity requirement generally applies to the
powers of the Trust’s successor cotrustees.
Nevertheless, neither any provision of the Trust, nor Probate Code section 15620,
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Filed 11/21/14 Spicer v. Steward CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
MILBRY ATISHA CLEYO SPICER, as Co-Trustee, etc. et al., E057114 Petitioners and Respondents, v. (Super.Ct.No. VPRVS003101)
RANDOLPH W. STEWARD, OPINION
Objector and Appellant.
APPEAL from the Superior Court of San Bernardino County. J. Michael Welch,
Judge. Affirmed.
Randolph W. Steward, in pro. per., for Objector and Appellant.
No appearance for Petitioners and Respondents.
This is a probate action regarding the Milbry Cleyo Spicer Living Trust (the
Trust). Appellant Randolph W. Steward, who represents himself in pro. per. in this
appeal, is one of the beneficiaries of the Trust. He challenges an order of the probate
court entitled “Order After Trial Re: Co-Trustee[s’] Third Account and Report; and
Petitioner Randolph W. Steward’s Petition For Orders” (Order). In his briefing, 1 Mr. Steward has not asserted any claim of error with respect to the referenced petition for
orders, which the probate court dismissed for failure to prosecute. He has not raised any
meritorious arguments with respect to the remainder of the Order, which among other
things approves the Third Report of Co-Trustees, Petition for Attorney’s Fees and
Compensation to Co-Trustees (Third Accounting). Mr. Steward in substance raises only
a single contention, although it is stated several different ways: he believes that the two
respondent successor cotrustees of the Trust lacked the authority to act on behalf of the
Trust, including to file the Third Accounting, because a third successor cotrustee has
resigned and not been replaced.1 We disagree with Mr. Steward, and affirm.
I. FACTS AND PROCEDURAL BACKGROUND
On June 27, 2004, Milbry Cleyo Spicer established the Trust in her name,
designating herself as both grantor and trustee. Three individuals were named to serve
successor cotrustees of the Trust in the event of her death or incapacity: Charles King,
Milbry Atisha Cleyo Spicer, and Rebecca Annette Scott, also known as Rebecca Steward.
Milbry Cleyo Spicer died on December 17, 2004, and the three named successor
cotrustees assumed their roles on behalf of the Trust.
In June 2006, and again in March 2007, Mr. King and Ms. Spicer petitioned the
probate court to remove Ms. Steward as successor cotrustee, on a variety of grounds. On
January 30, 2009—following a series of continuations and a January 2009 stipulation of
the parties to hold the matter of Ms. Steward’s removal in abeyance—Ms. Steward
1 This is a line of argument Mr. Steward has also raised in a related civil appeal (King v. Steward, Nos. E052121, E055805).
2 resigned as successor cotrustee, pursuant to a settlement agreement between the parties in
the related civil action. (See fn. 1, ante.) Nobody was appointed to serve as a third
successor cotrustee of the Trust in place of Ms. Steward.
Mr. King and Ms. Spicer, in their capacity as the remaining successor cotrustees of
the Trust, filed the Third Accounting on July 14, 2010. Mr. Steward—who was then
represented by counsel—filed objections on September 28, 2010, and the cotrustees
responded. In March 2011, Mr. Steward filed a petition for orders.2 After a series of
continuances, the Third Accounting and Mr. Steward’s objections thereto, as well as
Mr. Steward’s petition for orders, were set for hearing on May 1, 2012. The Third
Accounting was heard first, with Mr. Steward (now representing himself) examining two
witnesses—Mr. King and Ms. Spicer—while Mr. King and Ms. Spicer submitted on their
papers. The hearing was continued on May 2, 2012, to hear any remaining evidence or
argument Mr. Steward might wish to present with respect to the Third Accounting, and to
hear his petition for orders. But Mr. Steward failed to appear for the second day of the
hearing, calling in to the court clerk to claim a family emergency. The court found the
purported family emergency to be a pretextual attempt to avoid having the matter
proceed, Mr. Steward’s request for a continuance having been denied the day before.
The court deemed the matter of the Third Accounting submitted, based on the evidence
and argument presented to that point, including the parties’ verified papers, and granted
2 Mr. Steward’s petition for orders does not appear in appellant’s appendix, or anywhere else in our record. Nevertheless, we glean from the reporter’s transcript that it apparently addressed at least some of the same issues as he raised in his objections to the Third Accounting.
3 the cotrustees’ oral motion to dismiss Mr. Steward’s petition for orders for failure to
prosecute.3
The court’s Order, ruling on the Third Accounting and Mr. Steward’s petition for
orders, was filed June 20, 2012.
II. DISCUSSION
Mr. Steward purports to raise three issues on appeal: (1) whether the trial court
erred in its interpretation of the Trust’s provisions regarding appointment of a successor
cotrustee; (2) whether the two remaining successor cotrustees acted in excess of their
powers because they acted without the vote of a third successor cotrustee; and
(3) whether the cotrustees “lack standing” to file the Third Accounting. Each of these
purported issues, however, is a different facet of the same basic point, namely,
Mr. Steward’s contention that the Trust requires the unanimous vote of three successor
cotrustees for any action, and following the resignation of one successor cotrustee, the
remaining two are not empowered to take any action on behalf of the Trust, unless and
until a new successor cotrustee is appointed. We disagree with Mr. Steward’s
interpretation.
“We exercise our independent judgment in construing the terms of the Trust.
[Citation.] Our primary duty in construing the Trust is to give effect to [the trustor’s]
intent. We do this by looking at the language used, interpreting words in their ordinary
3 The court noted that Mr. Steward had already examined the only two witnesses he had indicated an intention of calling to testify.
4 and grammatical sense, unless a different interpretation can be clearly ascertained.
[Citation.]” (Huscher v. Wells Fargo Bank (2004) 121 Cal.App.4th 956, 972 (Huscher).)
The Trust designates “Milbry Cleyo Spicer” as both the grantor and the trustee.
“Charles King, Milbry Atisha Cleyo Spicer . . . and Rebecca Annette Scott [also known
as Rebecca Steward]” are designated to serve as “successor Co-Trustees” in the event of
the death or incapacity of the trustee. As noted, these three individuals became successor
cotrustees on December 17, 2004, when Milbry Cleyo Spicer died.
“Unless otherwise provided in the trust instrument, a power vested in two or more
trustees may only be exercised by their unanimous action.” (Prob. Code, § 15620.) The
Trust does not provide otherwise, so this unanimity requirement generally applies to the
powers of the Trust’s successor cotrustees.
Nevertheless, neither any provision of the Trust, nor Probate Code section 15620,
requires that once three successor cotrustees assume their duties, three votes are forever
more required for any action on behalf of the Trust, as Mr. Steward would have it. After
the resignation of Ms. Steward as a successor cotrustee, there remained two successor
cotrustees of the Trust. Under the ordinary meaning of the words of the Trust and the
Probate Code, actions taken with the agreement of those two remaining successor
cotrustees constitutes “unanimous action.”
Mr. Steward makes much of language from a subsection of the Trust instrument
entitled “Adult Beneficiary Rights.” This section provides that, if a successor cotrustee
fails or ceases to serve as trustee, the adult beneficiaries of the Trust may, by “majority
action in writing,” appoint a successor cotrustee. It further provides that if “agreement of
5 a majority of the beneficiaries cannot be obtained within sixty (60) days, a successor
Trustee shall be appointed by the court having general jurisdiction of the Trust.”
Mr. Steward reads the word “shall” to mean that a replacement successor cotrustee must
be appointed by the court (or by majority action of the adult beneficiaries, during the 60-
day window), prior to any further action being taken on behalf of the Trust by the
remaining successor cotrustees.
In our view, Mr. Steward places far more weight on the word “shall” than it can
bear. In context, the provision apparently means that if a “court having general
jurisdiction of the Trust” is requested to appoint a replacement successor cotrustee, it
shall do so.4 In other words, the “Adult Beneficiary Rights” section of the Trust
instrument provides that, after the 60-day period when the adult beneficiaries may, by
majority action, appoint a replacement successor cotrustee, the appointment power
devolves to the courts. There is no reason to conclude from this succession procedure
that the remaining cotrustees lack power to act on behalf of the Trust, unless and until a
new successor cotrustee is appointed.
Moreover, it is implausible that Mr. Steward’s interpretation is consistent with the
intent of the trustor. (See Huscher, supra, 121 Cal.App.4th at p. 972.) If the remaining
two successor cotrustees were disabled from taking any action on behalf of the Trust,
unless and until a new third successor cotrustee was appointed, there would necessarily
4 Although Mr. Steward is one of the adult beneficiaries of the Trust, nothing in our record suggests he has ever petitioned the court to appoint a new successor cotrustee in place of Ms. Steward.
6 be an interregnum when nobody had authority to take action to protect Trust assets. This
period could last for several months, while a majority of the adult beneficiaries tried to
come to an agreement on a successor cotrustee, or even years, until the matter was
decided by the courts. Because there is no explicit language in the Trust instrument
compelling such a result, we decline to adopt an interpretation so unlikely to be
consistent with the intent of the trustor.
In short, Mr. Steward’s various arguments based on the purported lack of authority
of the two remaining cotrustees of the Trust to act are without merit. In this appeal, he
raises no other arguments.
III. DISPOSITION
The order appealed from is affirmed. The parties shall each bear their own costs
on appeal.5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
RICHLI J.
CODRINGTON J.
5 Although respondents have prevailed on the merits in this appeal, they did so despite failing to file a respondents’ brief. We decline, therefore, to award them costs. (California Rules of Court, rule 8.278(a)(5).)