Estate of Wemyss

Gordon J. Aulik, Cavalero, Bray, Shumway & Geiger and Mark S. Bray for Objector and Respondent.

OPINION

EVANS, J.

Appellant petitioned the superior court for removal of the Bank of Stockton as executor and testamentary trustee of the estate of Wemyss, alleging conflict of interest and breach of fiduciary duties to the estate. The trial court denied the petition, and this appeal ensued.

In 1962, decedent, Edwin D. Wemyss, was the owner of the Coca-Cola Bottling Company of Stockton, a sole proprietorship, and the sole stockholder of Coca-Cola Bottling Company of Stockton, Ltd., a California corporation. The corporation owned the real property upon which the bottling company was situated and held a franchise from the parent Coca-Cola Company for San Joaquin and Calaveras Counties. The sole proprietorship operated as the bottler and distributor of Coca-Cola for San Joaquin and Calaveras Counties through a sub franchise from the corporation.

In July 1962, decedent and Ray De Lap, the general manager of decedent's business, executed an agreement entitled, "Contract of Purchase and Sale" (hereafter, "contract") for the purchase of the assets of the sole proprietorship and the…