Filed 8/17/22 Boyles v. Sisemore CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

Appeal from a judgment of the Superior Court of Orange County, Aaron W. Heisler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

RMO, Scott E. Rahn, Sean D. Muntz, David G. Greco, and Phillip J. Szachowicz for Plaintiff and Appellant.

Bunt & Shaver and David N. Shaver for Defendant and Respondent.

The sole issue raised in this appeal is whether the trial court correctly interpreted the Rose Alida Bourgois revocable trust dated August 30, 1995, as amended on January 14, 1998 (the Trust). The court determined the sole beneficiary of the Trust, Marie Bourgois Smith (Marie), inherited all of the Trust’s assets when her mother Rose Bourgois (Rose or the Trustor) died, and that despite Marie’s failure before her own death to transfer the assets out of the Trust, they are part of her estate. We agree with the court’s interpretation of the Trust. Accordingly, we affirm the court’s order denying Marie’s daughter’s (Aimee Boyles) motion for judgment on the pleadings (JOP) on her petition seeking to reclaim Trust assets in her capacity as successor trustee of the Trust. We also affirm the court’s order granting Marie’s stepdaughter’s (Robin Sisemore) cross-motion for JOP seeking an order denying the petition and subsequent judgment.

FACTS

Before ruling on the cross-motions for JOP, the court accepted the parties’ stipulation there was no extrinsic evidence on any issue relevant to the dispute. The parties agreed the four controlling documents were the petition, the response, the Trust, and the amendment to the Trust. They also stipulated to submit on these papers and the court should deny leave to amend as part of any order granting either motion. The trial court filed a detailed ruling in this case, which we will cite to at length in our summary of the facts below.

The trial court properly derived the relevant facts from the petition.[1] On August 30, 1995, Rose executed the Trust. She amended the Trust in 1998 to change beneficiary distributions and the names of successor trustees. Rose served as trustee until May 2004, when she resigned and appointed Marie as successor trustee. When Rose passed away on December 4, 2012, Marie continued managing the Trust’s assets. She sold the real estate located in Fresno and deposited the funds into a bank account held in the Trust’s name. Marie did not take any steps to transfer Trust assets to her own living trust.

Five years later, on November 11, 2017, Marie died. At that time, the Trust owned real property in Modesto, California (the Modesto Property) and approximately $241,000 in the Trust’s bank account. Marie was survived by two biological children (Boyles and Angela DeBassio) and three stepchildren (Sisemore, Russell G. Smith, III, and Ward Smith). Marie had a trust and pour-over will. Sisemore was named the successor trustee of Marie’s trust. Boyles was named the successor trustee of her grandmother Rose’s trust, i.e., the Trust at issue in this appeal.

Sisemore initiated proceedings to probate Marie’s estate. (Orange County Superior Court Case No. 30-2018-01028163). She believed the Trust assets Marie inherited from Rose should become part of Marie’s estate and be distributed equally among her five children. Before Boyles retained counsel, she agreed to transfer funds from the Trust’s bank account and the Modesto Property to Marie’s estate to be probated through Marie’s pour-over will.

In 2019, Boyles changed her mind about sharing her inheritance with her step-siblings. She filed a petition for instructions regarding the determination of beneficiaries to the Trust and for an order directing return of the property to the Trust. Sisemore filed an opposition and a JOP. In response, Boyles filed a JOP agreeing the matter could be decided as a matter of law.

After several continuances, the court took the matter under submission. Thereafter, it issued a lengthy minute order, dated January 19, 2021, which included the following findings: “The central question to be resolved in the [p]etition, and in these cross-motions, is whether the Trust required Marie to distribute to herself the assets in the Trust following the Trustor’s death or whether Marie had discretion to leave those assets in the Trust. The answer to this question will apparently decide whether the [r]emaining [a]ssets will become part of Marie’s Trust (in which Marie’s stepchildren have a beneficial interest) or whether they properly remain part of the Trust (in which only Marie’s biological children have a beneficial interest). [¶] The court finds Sisemore’s position more persuasive. Marie’s interest in distributions from the Trust vested upon the Trustor’s death and Marie was not authorized to indefinitely defer those distributions to permit the assets of the Trust to pass from the Trust directly to her biological children.”

The court stated it ascertained Rose’s intention from the language used in her trust documents. “The critical language to be interpreted is found in Section 2.04 of the Trust, [which] sets out the Trustor’s unambiguous intention that, upon the Trustor’s death, the successor trustee was to pay certain expenses, then distribute the remaining Trust assets. Contrary to Boyles’s position, the Trustor did not give the successor trustee discretion to continuing administering the Trust indefinitely, without making the distributions called for in Section 2.04.” (Fns. omitted.)

The court concluded the case was distinguishable from Weinberger v. Morris (2010) 188 Cal.App.4th 1016 (Weinberger), where the trust at issue expressly contemplated that the successor trustee had the discretion to defer distributions and continue administering the trust. It stated, “Section 2.04 provides in relevant part that, after the payment of certain expenses, ‘the remainder of the Trust estate shall be distributed to [Marie] free of trust.’” (Underlining omitted, italics added). The reference to expenses were not ongoing costs, but rather described in Section 2.03 as including funeral, burial, and taxes incurred due to the Trustor’s death.

In addition, the court explained why it was unpersuaded by Boyles’s argument that Section 2.04, when read in conjunction with Section 4.01, proved the Trustor contemplated the Trust estate could be administered after Marie became entitled to receive distributions. Section 4.01 provided, “Whenever the right of any beneficiary to payments from the net income or principal of the Trust [e]state shall terminate, either by reason of death or other cause, any accrued or undistributed net income from the Trust [e]state undistributed by the trustee on the date of such termination shall be held, administered, and distributed by the [t]rustee in the same manner as if such income had accrued and been received by the trustee after the date such beneficiary’s right to receive payments from the trust terminated.” The court noted this provision was not changed when the Trust was amended and must be read in the context of the entire document. It noted the original version of the Trust provided the Trustor (Rose) was entitled to receive monthly installments of the Trust’s income and principle (if necessary). The court concluded Section 4.01 simply provided that this right would terminate on the Trustor’s death.

The court reasoned: “Section 4.01 was plainly intended to resolve in advance what was to become of payments due to the Trustor, but not paid before the Trustor’s death (or other cause divesting the Trustor of the right to distributions); they were to become part of the assets to be later distributed as set forth in Section 2.04. The court does not find that the plain language of Section 4.01 manifested any intent by the Trustor that the Trust should or might continue after the Trustor’s own death.”

The court also rejected Boyles’s argument “that interpreting the Trust to permit the successor trustee to defer distributions until even after Marie’s death is consistent with the Trustor’s obvious intent to ensure that the Trust assets passed only to Marie or Marie’s biological children.” The court explained Section 2.04 plainly declared Rose’s intention that all her assets would be distributed to Marie, and if she predeceased the Trustor, then to Marie’s issue. The stepchildren were not mentioned in the original or the 1998 amended versions of the Trust. They were not expressly disinherited, setting them apart from those Rose specifically excluded: (1) Katrina Bourgois;[2] and (2) any issue of the Trustor’s deceased son, Rene Bourgois. The court stated, “There are no facts before the court regarding when Marie became a stepparent, whether Trustor ever had a relationship with Marie’s stepchildren, or how Marie otherwise felt or thought of Marie’s stepchildren. [¶] In summary, the court finds that the plain language of the Trust, read and interpreted in light of all relevant information presented in connection with these motions, vested in Marie an immediate right to distribution of all Trust assets that remained after the payment of certain expenses and did not give Marie (as [s]uccessor [t]rustee of the Trust) discretion or authority to defer those distributions indefinitely or until after Marie’s own death.”

The court granted Sisemore’s JOP as to the petition and she prepared a judgment. On March 17, 2021, the court signed a judgment stating it granted the JOP and judgment would be entered in favor of Sisemore “denying the [p]etition.”

DISCUSSION

I. Applicable Standards of Review

“‘A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. [Citation.] A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review.’ [Citation.]” (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777.)

“[T]he de novo standard of review also applies . . . to the interpretation of written instruments, including a trust instrument, unless the interpretation depends on the competence or credibility of extrinsic evidence or a conflict in that evidence [citation].” (Pena v. Dey (2019) 39 Cal.App.5th 546, 551.) As stated earlier in this opinion, the parties stipulated there were no extrinsic facts available on any issue relevant to the interpretation of the Trust. The parties agree we must review the matter de novo.

II. Interpretation of the Trust Regarding Distribution

Boyles’s primary argument on appeal is that the trial court misinterpreted the Trust. Applying the required de novo standard of review, we reach the same conclusion as the trial court.

The rules regarding how to interpret a trust document are well settled. Probate Code section 21102 provides the following: “(a) The intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument. [¶] (b) The rules of construction in this part apply where the intention of the transferor is not indicated by the instrument.”[3]

The rules of construction are as follows: (1) “The words of an instrument are to receive an interpretation that will give every expression some effect, rather than one that will render any of the expressions inoperative.” (§ 21120); (2) “All parts of an instrument are to be construed in relation to each other and so as, if possible, to form a consistent whole. If the meaning of any part of an instrument is ambiguous or doubtful, it may be explained by any reference to or recital of that part in another part of the instrument.” (§ 21121.); and (3) “The words of an instrument are to be given their ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended meaning can be ascertained. Technical words are not necessary to give effect to a disposition in an instrument.” (§ 21122.)

Therefore, “‘“Where the terms of [the instrument] are free from ambiguity, the language used must be interpreted according to its ordinary meaning and legal import and the intention of the testator ascertained thereby.”’ [Citation.]” (Trolan v. Trolan (2019) 31 Cal.App.5th 939, 949 (Trolan).) Considering the Trust as a whole, we conclude the language is not ambiguous. The Trust clearly required prompt distribution of all the Trust’s assets and termination of the Trust following Rose’s death.

Like the trial court, we begin our analysis by examining the Trust’s “Article 2. Distributions by Trustee.”[4] This article had several subdivisions, and relevant to our analysis are the last three (Sections 2.04, 2.05, and 2.06), which all fall under the header, “Distribution After Trustor’s Death.”

Section 2.04 provided, in its entirety, the following language: “After the death of the Trustor and payment of any expenses set forth in Section 2.03 above, the trustee shall distribute the entire Trust estate to the trustee’s daughter, Marie Bourgois Smith, 1810 Silverado Train, Napa, California, free of trust. If Marie Bourgois Smith shall predecease the Trustor, then upon the Trustor’s death the trustee shall distribute the Trust estate, free of trust to the then living issue of Marie Bourgois Smith by right of representation. If neither Marie Bourgois Smith nor any of Marie Bourgois Smith’s issue survive the Trustor, then upon the Trustor’s death the trustee shall distribute the Trust estate, free of trust to the Trustor’s then living heirs, according to the California laws of intestate succession, expressly excluding however, Katrina Bourgois or any issue or alleged issue of the Trustor’s deceased son, Rene Bourgois.”[5]

Because Marie did not predecease Rose, we need only focus on the language setting forth Rose’s intentions regarding Marie’s inheritance. Section 2.04 plainly stated Marie was entitled to receive all assets “free of trust.” The only perceived delay in distribution would be the payment of death-related expenses from the Trust’s assets. Like the trial court, we interpret the phrase “free of trust” to have one clear and plain meaning: Marie’s rights to the Trust assets vested when Rose died. To be “free of” something is commonly understood to mean being released, unconfined, liberated, or let go. Thus, Marie was not required to delay distribution or continue administering the Trust for the sake of herself or others. Simply stated, the Trust directed the trustee to distribute “the entire” estate to Marie outright, without the need for further Trust administration.

The Trust’s other post-death “distribution” instructions related to disinheriting relatives. Section 2.05 simply announced the specified disinherited relatives were “intentionally omitted.” Section 2.06 contained a standard no contest clause. These provisions do not alter our interpretation of Section 2.04, which stated Rose intended Marie to receive all the assets free of trust.

This determination does not conclude our analysis. “In order to first ascertain, and then, if possible, give effect to the intent of the trustor, the court must consider the whole of the trust instrument, not just separate parts of it. [Citation.]” (Trolan, supra, 31 Cal.App.5th at p. 949.) We conclude the remaining sections of Article 2, read in conjunction with Article 4, lend further support to our conclusion Rose intended the successor trustee to fully distribute, not further administer, the Trust assets.

In addition to the three sections discussing post-death distributions, Article 2 also contained provisions authorizing the trustee to make distributions of Trust income and principle to the Trustor during her lifetime. Section 2.01 provided the trustee could pay “in monthly or other convenient installments all of the net income from the Trust” for Rose’s “benefit.” Section 2.02 gave the trustee the discretion to invade the principal, if necessary, for Rose’s “use and benefit.” Accordingly, these provisions allowed Rose to receive payments from the Trust during her lifetime. When Rose resigned as trustee, she intended for Marie, as the successor trustee, to continue withdrawing Trust income each month for Rose’s living expenses.

The final provision of Article 2 (Section 2.03) authorized the trustee to pay from “income or principle” death-related costs, such as estate taxes, funeral, and burial expenses. The Trust specified these one-time payments were to be made “[o]n the death of the Trustor.” We interpret this provision to mean Rose intended Marie to use Trust assets, rather than her own funds, to pay creditors for death-related costs incurred by her passing.

Thus, to briefly summarize, we interpret Article 2 as authorizing a trustee to make three kinds of distributions from the Trust as follows: (1) periodic payments to Rose during her life; (2) the one-time payment of expenses caused by Rose’s death; and (3) a full and final distribution to Marie of the entire remaining Trust estate free of all further trust obligations (as long as Marie did not predecease Rose). Nothing in Article 2 supported Boyles’s argument Rose intended a successor trustee to continue administering the Trust following her death.

Keeping these distribution instructions in mind, we turn to Article 4, titled “Administrative Provisions.” Boyles argues that because Article 2 did not provide a specific timeline for the final distribution to Marie, the court had no grounds to presume Rose intended for it to be immediate. She argues Section 4.01 supports the conclusion Rose intended for the successor trustee to continue administering the Trust for the benefit of Marie and other potential beneficiaries such as herself (Rose’s grandchild). We disagree.

The first paragraph of Article 4 was titled “Undistributed Income on Termination of Beneficial Interest [¶] Section 4.01.” The next subheading was, “Other Income of Beneficiary for Discretionary Payments [¶] Section 4.02.” We interpret Sections 4.01 and 4.02 as relating to the trustee’s administrative duties during the Trustor’s lifetime, when she was entitled to receive payments from Trust income and principle.

The first sentence of Section 4.01 defined the limited scope of its own application. It was triggered “[w]henever the right of any beneficiary to payments of the net income or principle of the Trust estate shall terminate, either by reason of death or other cause.” (Italics added.) Under those circumstances, the Trust authorized the trustee to hold, administer, and distribute “any accrued or undistributed net income from the Trust estate” existing “on the date of such termination.” However, this section also specified that the trustee must hold, administer, and distribute this income “in the same manner as if such income had accrued and been received by the trustee after the date of such beneficiary’s right to receive payments from the Trust terminated.” (Italics added.)

The first sentence of Section 4.01 specifically refers to Rose’s right to periodically receive payments of Trust income or principle (a right to lifetime payments guaranteed by Sections 2.01 and 2.02). Rose was the only beneficiary named in the Trust entitled to such payments. As mentioned above, Section 2.03 authorized payments to creditors, not beneficiaries, for death related expenses. Similarly, Section 2.04 did not mention payments, but rather specified the trustee shall distribute the “entire Trust estate

. . . free of trust.” And if Marie was dead, the trustee was directed to distribute “the Trust estate, free of trust” to Marie’s living issue. Neither Marie nor the contingency beneficiaries had the right to demand monthly payments of Trust income for any period of time.

Boyles points out the first sentence discusses the rights of “any beneficiary,” which could be read to mean more than one beneficiary was entitled to monthly payments. She suggests “any” beneficiary should be interpreted as referring to Marie and other contingency beneficiaries (Marie’s issue). We would agree if this was the only language in the instrument concerning the trustee’s distribution obligations. The more specific and clear language contained in Section 2.04 overrides the more general terminology used in Section 4.01. As previously stated, the rules of construction require us to give words of an instrument their ordinary meaning “that will give every expression some effect, rather than one that will render any of the expressions inoperative.” (§ 21120.) To construe the Trust as giving Marie a right to ongoing payments of interest and principal would render inoperative Section 2.04’s language stating Marie inherited full rights to the entire Trust estate, explicitly free of trust obligations or interference.

We construe Section 4.01 as having a limited application, serving a singular goal of safeguarding money distributed monthly for Rose’s benefit. Appreciating, the date of death was unpredictable, Section 4.01 directed the successor trustee to gather any unused funds and distribute it as if the income had accrued or been received after Rose’s death.

Section 4.02 further supports our interpretation. This provision was created to account for income generated from sources outside of the Trust for Rose’s benefit during her lifetime. It stated that when the trustee was “exercising its discretionary authority under this declaration to make payments to or for the benefit of any beneficiary from the net income or principal of the Trust estate, the trustee shall take into consideration any income or other means of care, maintenance, support, or education available to such beneficiary from sources outside the Trust that may be known to the trustee.” The second sentence of Section 4.02 clarified that the trustee’s discretionary determination about “the necessity for and the amounts of any payments made to or for the benefit of any beneficiary” could not be challenged by others. Because Rose was the only beneficiary entitled to receive payments from income or principle, Section 4.02’s purpose was to protect the trustee’s management decisions regarding Rose’s care. This provision did not create an ongoing obligation post-death.

On a final note, we are not persuaded by Boyles’s assertion Article 3, which contained a long list of boilerplate provisions regarding trustee “powers,” support her theory the Trust did not terminate after Rose’s death. Boyles correctly points out Sections 3.01 and 3.02 authorize the trustee to retain investments for the Trust and describe how the trustee should manage the Trust’s property. However, there is no language stating these general descriptions of management powers must continue indefinitely for Marie or her heirs. Like the trial court, we read these provisions within the context of the distribution and administrative articles. We conclude the “powers” provisions related only to when the Trust required management by a trustee for Rose’s benefit during her life. The Trust language authorizing a full distribution free of trust would necessarily relieve the trustee from further Trust obligations.

After reviewing the entire Trust document, we conclude Marie’s right to disbursement “free of trust” upon Rose’s death, was delayed only by the time required to pay death-related expenses. Marie was not obligated to continue administering the Trust or make decisions about payments to any other beneficiaries. The only other requirement for disbursement was that Marie could not predecease Rose, but that is not an issue in this case.

III. Presumptions About Immediate Distribution

Boyles asserts that because the Trust does not specify the timing of exactly when the trustee must distribute assets to Marie free of trust, the court incorrectly assumed Rose intended an immediate distribution. The problem with this argument is twofold. First, our review is de novo, and therefore, we need not review what the trial court may or may not have assumed. Second, the Trust’s silence about timing cuts both ways. The omission does provide a sound basis for the presumption Boyles is advocating for, i.e., an ongoing contingency trust post-death. Moreover, this approach ignores the clear statutory rules for interpreting trusts. We must look to the entire instrument for clues about the Trustor’s intent regarding the timing of distribution. (Trolan, supra, 31 Cal.App.5th at p. 949.)

Typically, when a trustor intends for a trust instrument to continue post-death the instrument will include additional provisions to achieve this goal. (See, e.g., Dae v. Traver (2021) 69 Cal.App.5th 447, 451 [Trust expressly provided after Trustor died assets must be divided into survivor’s trust, a residuary trust, and generation skipping trust for grandchildren].) Rose did not set up a residual or contingency trust for her daughter. To the contrary, she instructed that “after her death” the trustee shall distribute the entire estate “free of trust.”

Boyles relies on three cases to support her argument there must be specific language about the timing of the distribution before the court can hold it immediately follows the Trustor’s death. (Estate of Taylor (1967) 66 Cal.2d 855 (Taylor); Estate of Newman (1964) 230 Cal.App.2d 158; Weinberger, supra, 188 Cal.App.4th 1016.) These cases do not support Boyles’s theory but rather confirm what we have already said, i.e., determining a testator’s intent must be decided on a case by case basis, and time of vesting requires consideration of the Trust’s language used according to its ordinary meaning. (Trolan, supra, 31 Cal.App.5th at p. 949.)

In the Taylor case, the court considered what should happen if a beneficiary survives the decedent but passes away before the estate’s assets were actually distributed. (Taylor, supra, 66 Cal.2d at p. 858.) The court framed the issue as “whether a clause requiring survivorship should be interpreted to mean survivorship to distribution or survivorship to the time distribution should have occurred, or, as an alternative, whether survivorship to the earlier date constitutes substantial compliance with the condition.” (Ibid.) The court held: “[U]nreasonable delay cannot defeat the beneficiary’s interest. This conclusion promotes the established policy favoring prompt distribution of estates [citations] and carries out the presumed intent of the testatrix. In the absence of any indication to the contrary a testator contemplates prompt distribution. His intention is substantially complied with if a beneficiary who is alive at the time distribution could and should have occurred is allowed to take under the will. [Citation.]” (Ibid., fn. omitted.) Subsequent cases have referred to this holding as the Taylor rule.

Boyles refers to this case to support her theory the presumption of immediate distribution applies only to wills but not trusts. She misreads the holding of the case, and we found no legal authority supporting such a bright line rule. We appreciate wills and trusts are two very different estate planning tools that may serve different purposes. A testator makes a will for the main goal of directing the disposition of assets to others and transfers only assets subject to the jurisdiction of the probate court. In contrast, trustors often use trusts to protect assets for future generations. What Boyles fails to appreciate is that trustors can also draft trust instruments to achieve the same exact result as a will (with the added benefit of avoiding probate proceedings and costs). In such cases, the trustor need only draft a trust using language signaling his or her intention that assets will be distributed to his or her designated beneficiaries. Such was the case here.

Boyles relied heavily on the Weinberger case, arguing the case is factually analogous. Like the trial court, we conclude the Weinberger opinion is factually distinguishable and supports our interpretation of the Trust. In that case, the court determined the Taylor rule did not apply to a trust that, by its terms, provided for its continuation until actual distribution to then-living beneficiaries. (Weinberger, supra, 188 Cal.App.4th at pp. 1022-1023.) The trustor, a mother of two children, named her daughter (Daughter) the successor trustee or alternatively Daughter’s husband, Lee Davis. (Id. at p. 1018.) The trustor intentionally omitted her son (Son) from the trust. (Id. at p. 1019.) The trust provided that upon the trustor’s death, the trustee should pay all trust assets to Daughter. (Weinberger, supra, 188 Cal.App.4th at p. 1019.)

After the trustor died, Daughter failed to execute, deliver, or record the property to herself in her role as successor trustee. (Weinberger, supra, 188 Cal.App.4th at p. 1019.) After Daughter died, Davis and Son battled over ownership of the trust assets. (Ibid.) Son asserted the trust assets irrevocably vested in Daughter when their mother died and he was entitled to inherit as one of Daughter’s heirs. Son maintained Davis never acquired any interest in the trust’s assets. (Id. at pp. 1019-1020.)

The court determined Son’s argument implicated the merger doctrine, but this legal principle did not apply because the trustor created a post-death contingency trust.[6] (Weinberger, supra, 188 Cal.App.4th at p. 1021.) “The language employed by [the trustor] in her trust instrument provided that, upon her death, the trustee would pay certain expenses and distribute her personal effects in accord with her written directions, and distribute the remainder to [Daughter]. If [the] trust instrument ended there, then [Son’s] argument might prevail [citation], but it did not. [The Testator’s] trust instrument further provided in [A]rticle 5.2.A: ‘If [Daughter] . . . should die prior to receiving final distribution, the undistributed principal and income of such beneficiary’s share shall be held, administered and distributed for the benefit of Lee Davis . . . .’ And [A]rticle 5.4 provided: ‘Until a beneficiary receives his or her final distribution, the Trustee may pay to or apply for the benefit of such beneficiary, all or part of the net income plus principal from such beneficiary’s share, for the health, support, maintenance, and education of such beneficiary.’ We see no language in [the] trust instrument indicating that it imposed upon a trustee an affirmative duty to make a prompt distribution of the Trust’s assets to [Daughter] upon [the trustor’s] death. At the same time, the Trust included express

language governing the contingency of [Daughter’s] death prior to a distribution of trust assets to her.” (Weinberger, supra, 188 Cal.App.4th at pp. 1021-1022.)

The court in Weinberger distinguished the language in the trust from the testamentary documents discussed in the Taylor case. (Weinberger, supra, 188 Cal.App.4th at p. 1022.) “Taylor involved an instrument which included no language regarding the time limits for distribution of estate assets. In that context, and given evidence showing an executor’s undue delay in distributing the estate, the court found that the instrument had prescribed a reasonable time limit for distributions. The language found in Mrs. Weinberger’s trust instrument gives no such indication that she intended a prompt distribution of her trust’s assets.” (Id at p. 1022.) Rose’s Trust did not include a contingency plan for any delay in the distribution of the Trust’s assets. It would be incongruous to hold Rose’s bequeath “free of trust” indicated she intended a trustee to continue administering the assets in the Trust indefinitely for Marie’s benefit.

IV. Biological Children vs. Stepchildren

Boyles’s final argument on appeal is that we should accept her interpretation of the Trust because it will result in Rose’s blood relatives, not strangers, inheriting the Trust assets. She explains that if the Trust remained intact after Marie’s death, then only Marie’s biological children, not stepchildren, would inherit Rose’s assets. She points out that the Trust’s contingency beneficiaries were Marie’s issue, which would include adopted children but not the stepchildren in this case. This argument lacks merit because it ignores the parties’ stipulation there was no relevant extrinsic evidence to be considered. We will not speculate about Rose’s relationship with her stepchildren or whether she viewed them as strangers or beloved members of a blended family. As stated, the Trust instrument was unambiguous and the language must be interpreted by the ordinary meaning of its terms.

DISPOSITION

We affirm the court’s judgment. Respondent shall recover her costs on appeal.

O’LEARY, P. J.

WE CONCUR:

GOETHALS, J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] As correctly noted by the court, “A trial court’s determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes. [Citations.]” (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.)

[2] The court commented in a footnote that Boyles described Katrina Bourgois as a step-granddaughter, however, there was no evidence in the record to establish the nature of this relationship or shed light on Rose’s relationship with any of her stepchildren.

[3] All further statutory references are to the Probate Code.

[4] In this opinion, for ease of reading, we have fixed grammatical errors and omitted unnecessary capitalization when quoting from the parties’ documents and the trial court’s ruling.

[5] When Rose amended the Trust, she added a paragraph to Section 2.04 that bequeathed a specific gift of real property to Jennie J. Hoelting “free of trust” if she survived the Trustor. The amendment is not relevant to this appeal because Hoelting predeceased Rose. The remaining paragraph in the amended Section 2.04 mirrors the original version, distributing the entire Trust estate to Marie “free of trust,” and listing contingency beneficiaries in the event Marie predeceased Rose.

[6] The parties dispute whether the merger doctrine applies in this case. We need not address this issue because our review is de novo and our ruling is solely based on our interpretation of the unambiguous and clear language of the Trust.