Dessar v. Bank Of America National Trust And Savings Association

353 F.2d 468 Martha V. DESSAR, as Executrix of the Last Will and Testament of Herbert J. Dessar, Deceased, and individually, Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Appellee. No. 19430. United States Court of Appeals Ninth Circuit. November 22, 1965. Peter Hunt, Herbert J. Friedman, Burd, Hunt & Quantz, San Francisco, Cal., for appellant. Burnham Enersen, Wm. W. Schwarzer, David M. Heilbron, McCutchen, Doyle, Brown, Trautman & Enersen, San Francisco, Cal., for appellee. Before ORR * , KOELSCH and DUNIWAY, Circuit Judges. DUNIWAY, Circuit Judge: 1 This is a diversity case in which appellant, plaintiff in the trial court, seeks to have it determined that a trust agreement, executed on November 8, 1933, is, as a matter of law, invalid as a trust. The theory is that the trustee (appellee) was a mere agent during the lifetime of the trustor, and that therefore provisions dealing with disposition of the trust property upon the death of the trustor are invalid because the instrument was not executed in the manner required by the California Probate Code for the execution of a will. (Cal.Probate Code, § 50) The trial court entered a judgment…