Papais v. Papais CA3

Filed 11/10/20 Papais v. Papais CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----

JOHN DUANE PAPAIS, C088688

Plaintiff and Appellant, (Super. Ct. No.
STKPRTR20180000117)
v.

DANIEL PAPAIS,

Defendant and Respondent.

John Papais, husband, and Elizabeth E. Papais, also known as Betty, wife,
established the Papais Trust in 1991. Under the terms of the Papais Trust, formed as an
“A/B trust,” upon the death of one of the settlors, the surviving spouse was to allocate
trust assets to either the revocable “Survivor’s Trust” or the irrevocable “Family Trust.”
Plaintiff John Duane Papais and defendant Daniel Papais, the settlors’ sons, were to be

1
the equal beneficiaries following the death of the surviving settlor spouse.1 John died in
1993. Following Betty’s death in 2017, plaintiff discovered that the real property that is
the subject of this action, which he believed to be a trust asset to be divided equally
between the parties following Betty’s death, had been conveyed in 2004 from Betty as
trustee to Betty individually and then immediately from Betty to defendant. Defendant
had sold the property and retained the proceeds. Plaintiff filed a petition pursuant to
Probate Code sections 850 and 17200, seeking a judgment declaring the real property and
proceeds from the sale thereof was owned by the irrevocable Family Trust, and therefore
he was entitled to half of the proceeds from the sale of the property. Plaintiff also sought
an accounting.
The trial court denied the petition. On appeal, plaintiff asserts that Betty did not
transfer the subject real property from the Papais Trust to the revocable Survivor’s Trust.
He further asserts that Betty did not effectively convey the property from the trust to
herself individually, and then to defendant, in 2004. According to plaintiff, the real
property remained part of the trust at the time of Betty’s death, and therefore the proceeds
from the sale of the real property should be divided equally between plaintiff and
defendant. Plaintiff also raises his purported entitlement to an accounting.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Papais Trust
John and Betty were married and had two children, plaintiff and defendant. John
and Betty created the Papais Trust on January 29, 1991. John and Betty were to be the
original trustees and the initial primary beneficiaries. The settlors transferred assets to
the trust for no consideration. During the settlors’ joint lifetime, the trust was to be

1Because the parties and their parents all share the same last name, to avoid confusion
we refer to John Papais as John and Elizabeth Papais as Betty.

2
revocable and they could alter or amend it. The settlors’ powers to amend or revoke the
trust were personal to them and not exercisable on their behalf by any conservator or
anyone else. The trust provided that, “So long as either of us is acting as Trustee, we can
exercise any power over the trust property as though this trust had never been
created . . . .”
The trust provided that upon the death of one of the settlors, “the Trustee shall
divide the trust estate, including all property received as a result of the decedent’s death,
into two shares, each share to be administered as [a] separate trust to be known
respectively as the ‘Family Trust’ and the ‘Survivor’s Trust.’ ” The Family Trust was to
be funded with the decedent spouse’s separate property and his or her interest in the
community property “to the extent of a pecuniary amount equal to the maximum sum that
can be allocated to a trust that does not qualify for the federal estate tax marital deduction
to any extent, which will result in the least federal estate tax being imposed on the
decedent’s estate,” taking certain specified matters into account. As for the Survivor’s
Trust: “All of the rest and residue of the assets of the trust estate shall be allocated to the
Survivor’s Trust.” The surviving spouse “may amend, revoke or terminate the Survivor’s
Trust, but the Family Trust may not be amended or revoked.”
Upon the death of the surviving spouse, the Survivor’s Trust and the Family Trust
would both terminate. The trustee was directed to distribute the trust estate “in
accordance with and to the extent provided by the Survivor’s exercise of his or her power
of appointment.” Otherwise, upon the surviving spouse’s death, the trustee “shall
distribute the trust estate to our children, in equal shares, free of trust.”
The trust listed the parties as successor co-trustees. The trust further provided that
appointees named together were to serve jointly as co-trustees.
Schedule A, Section O, of the trust, entitled “Use of Home,” stated, in part,
“Unless otherwise provided in this instrument, the Trustee shall allow the Survivor to
occupy and use until his or her death, the home (or any interest therein) used by either or

3
both Trustors as a principal residence at the time of the Decedent’s death. The Trustee
shall, at the discretion of the Survivor, sell such home and, if the Survivor so directs,
purchase and/or build another comparable residence to be used as a home for the
Survivor, and so on from time to time. The Survivor shall not be required to pay any rent
for the use of such home. [¶] Subject to the foregoing occupancies, any such home (or
interest therein) held by the trustee, or the proceeds from the sale thereof, shall be part of
the principal of these Trusts. All taxes, insurance, repairs, and assessments concerning
such home shall, in the discretion of the Trustee, be paid out of the trust estate containing
such home.”
Grant Deeds, Life Estate Grant Deed, and the Settlors’ Deaths
In a grant deed recorded on August 30, 1991, John and Betty granted the subject
real property to themselves as trustees of the Papais Trust. John died on June 2, 1993.
A grant deed dated January 20, 2004, was recorded in San Joaquin County on
January 30, 2004. In it, Betty, as trustee, granted the subject real property to herself as an
unmarried woman as her sole and separate property.
A life estate grant deed dated January 20, 2004, was recorded in San Joaquin
County on January 30, 2004. In it, Betty granted the subject real property to defendant as
his “sole and separate property.” Betty reserved “to herself exclusive permission for the
use and enjoyment of the rents, issue and profits of the above-granted premises for and
during the natural life of the Grantor.”
Betty died on February 2, 2017.
The Dispute Arises
Written correspondence between the parties and individuals representing them
demonstrates that, in 2017, plaintiff contested the handling of the subject real property.
Plaintiff asserted that the subject real property “was still recorded as a part of the Papais
Family Trust at the time [Betty] signed and recorded the Life Trust, therefore making the

4
recorded deed invalid. As a part of the family trust, the interest could only be split 50/50
in accordance with the trust and not given to one of the executors.”
Defendant’s position was that Betty effectively gave the subject real property to
him in 2004, subject to a life estate in favor of Betty. “Simply stated [plaintiff] ha[d] no
right to any of the proceeds from the sale of the Property. It was [defendant’s] decision
to sell the Property following the death of [Betty] on terms that he found acceptable.”
Plaintiff’s attorney countered that “the . . . property was still recorded and was part
of the Papais Family Trust at the time that [Betty] signed and recorded a Grant Deed
transferring the property from the Papais Family Trust to her as her sole and separate
property. That was done in 2004. Of course . . . John died in 1993. [Betty] left the . . .
property in the Papais Family Trust from 1993 until 2004. That entire time you and your
brother would have split the proceeds from the sale of the . . . property when your mother
died and it was sold. [¶] It is [plaintiff’s] belief that as part of the Papais Family Trust,
the interest in the property could only be split 50/50 in accordance with the terms of the
Papais Family Trust and not given to one of the Executors of the Trust. [Plaintiff]
believes that as a co-executor of the Papais Family Trust, [defendant] had a fiduciary
responsibility to [plaintiff] to share any distribution of the assets in that Trust.” Plaintiff,
through his attorney, accused defendant of persuading or coercing Betty into signing the
deeds in 2004, leveraging Betty into making changes “that she was not necessarily in
favor of.”
Responding to the letter from plaintiff’s attorney, defendant’s attorney stated that
Betty “freely and without any undue influence deeded to [defendant] the property . . . and
retained for herself a life estate in the Property. The Property was taken out of the Papais
Family Trust by Betty . . . prior to the deed to” defendant.
The Petition
Plaintiff filed a petition pursuant to Probate Code sections 850 and 17200 seeking
a judgment declaring his interest in the subject real property and/or the net proceeds from

5
the sale of that property belonging to the trust. According to plaintiff, upon the death of
the surviving spouse, the irrevocable Family Trust was to be distributed equally to
plaintiff and defendant. The petition asserted, “If [Betty] created the Survivor’s Trust,
she would also have the right to distribute any assets held in the name of that trust to any
person she wanted to, however, she must do this by a written power of appointment
document; otherwise the net proceeds of the Survivor’s Trust would have been required
to be distributed to her two son’s [sic] equally, or in the same manner that the Family
Trust was to be distributed . . . .”
Plaintiff alleged that, upon John’s death, Betty “did not fulfill her legal obligation
as trustee of the original trust to create the Family Trust nor did she create a Survivor’s
Trust, nor did she ever create a written power of appointment document to distribute ‘her
share’ of the trust to anyone she desired as required per the terms of the original trust.”
(Capitalization omitted.) Plaintiff urged the trial court to “find that all assets that were in
the trust at the time of John’s death, should have been funded into the irrevocable Family
Trust, including the real property . . . at issue and distributed equally to their two sons, the
[Plaintiff] and Defendant . . . .” (Capitalization omitted.)
Plaintiff further asserted that the subject real property was a community asset of
the settlors originally funded into the Papais Trust in 1991 by grant deed. John died in
1993. According to the petition, on September 23, 2003, Betty removed John’s name
from the original trust deed by filing an affidavit, making her the sole surviving trustee.
The petition continued: “about 11 years after John passed, Betty transferred the home out
of (what should have been) the irrevocable trust and granted it to herself . . . as her sole
and separate property on January 20, 2004. On the same day, she transferred the home to
the Defendant via a Grant Deed, reserving a ‘life estate’ for herself. By doing this, Betty
in effect violated the terms of the trust agreement which said that all community property
should remain and be managed by the (now irrevocable trust, because John died) trust,
because she did not create a Survivor’s Trust and fund it with her 50% of the community

6
property, and she did not use the power of appointment language to transfer this property
to another as required per the terms of the original trust.” (Capitalization omitted.)
Plaintiff stated that defendant had sold the real property and refused to split the net
proceeds with plaintiff.
Plaintiff believed that, other than the subject real property, all other trust property
had been distributed equally to the parties as required under the trust. However, plaintiff
stated that only a complete and formal accounting could confirm this.
Plaintiff alleged that defendant breached a number of duties he owed plaintiff as a
beneficiary of the trust. These duties included the duty to administer the trust; the duty of
loyalty; the duty to deal impartially with beneficiaries; the duty to avoid conflicts of
interest; the duty to take control of and preserve trust property; the duty to make trust
property productive; and the duty to keep trust property separate and identified.
Plaintiff sought a judgment declaring that the real property, and therefore the
proceeds from the sale of the real property, was owned by the irrevocable Family Trust,
and therefore plaintiff was entitled to fifty percent of the net proceeds from the sale.
Plaintiff further sought a complete and formal accounting “from the time that Betty
became incompetent to manage her affairs up, until the time [defendant] makes a final
distribution to the [plaintiff] per the terms of the trust.” (Capitalization omitted.)
Defendant’s Opposition to the Petition
According to defendant, on January 20, 1994, Betty, plaintiff, defendant, and
Betty’s accountant met to discuss the allocation of assets to the two sub-trusts. A memo,
prepared by plaintiff, addressed the allocation of assets to the Family Trust and the
Survivor’s Trust. Pursuant to that memo, the subject real property was to be allocated to
the Survivor’s Trust.
According to defendant, over the next several years, Betty assisted plaintiff in a
number of financial matters. She did not similarly assist defendant. “By 2004, Betty was
aware that if the Survivor’s Trust were divided equally between [plaintiff] and

7
[defendant], then [plaintiff] would end up receiving more financial benefit from the Trust
than [defendant] since [defendant] had not received the financial assistance that Betty had
provided to” plaintiff. She therefore elected to transfer title in the subject real property
from the trust to herself, and then deeded the real property to defendant, retaining a life
estate for her own benefit. Betty lived at the subject real property until she moved to a
skilled nursing facility and subsequently died. Upon Betty’s death, the life estate was
extinguished and defendant was free to do with the real property as he wished.
Defendant sold the real property and retained all proceeds from the sale.
Defendant included the January 20, 1994, memo prepared by plaintiff as exhibit A
to his opposition.2 Insofar as relevant here, the memo addressed the separation of assets
into the two separate sub-trusts. According to the memo, the real property that is the
subject of this action was to be assigned to the Survivor’s Trust. The memo also noted,
regarding assets in the Survivor’s Trust: “The value of the assets [in the Survivor’s
Trust] will be assessed at your death and any value over the $600,000. will be taxed with
the trust paying +/- 40% to Uncle Sam. In order to avoid this taxation, [Betty’s
accountant] suggested that you think about transferring some of the survivor trust assets
to the estates of your heirs prior to your demise.” (Capitalization omitted.)
Plaintiff’s Reply
In reply, plaintiff asserted that the memo was insufficient to show that Betty
allocated the subject real property to the Survivor’s Trust. Plaintiff also asserted that
Betty could not transfer the subject real property from the trust to herself and then from
herself to defendant in 2004 without first revaluing all of the assets in the trust to present
day value. Plaintiff asserted that there may be no way to determine if Betty fulfilled her

2 The typewritten date of the memo is January 20, 1993. However, the year is amended
in handwriting to read 1994. It is undisputed that the memo was drafted in 1994.

8
duties as surviving trustee, if she misappropriated or misused principal of the Family
Trust, or if she materially breached her duties as trustee owed to her children.
Plaintiff summarized: “The issue for this court to decide is whether Betty could
transfer the family home outright, in its entirety, to the [defendant] before she passed.
The transfer could be wholly proper if [the] court determined that the house could be held
solely in the Survivor’s Trust; conversely, if the house was should have been [sic] held in
whole or in part by the Family Trust, then the transfer could not have been a valid
transfer, as upon John’s death in 1993, Betty lost the power to revoke the Family Trust in
whole or in part as it became irrevocable at the time of his passing (if it were ever
properly and formally funded as required by the terms of the trust in the first place, which
we do not know at this time). This analysis is further complicated being that there are no
facts to indicate whether Betty in fact ever formally funded and allocated the dual Family
Trust and Survivor’s Trust back to the time that her spouse passed in 1993.”
Plaintiff asserted that the court should rule that the subject real property was to be
held in a constructive trust for the benefit of, and to be divided equally among, plaintiff
and defendant.
The Trial Court’s Order and Judgment
The trial court denied the petition and entered judgment in favor of defendant and
against plaintiff.3 In an order and judgment, the trial court denied the petition and
awarded defendant costs.

3 Plaintiff asserts in his opening brief that the trial court “ruled from the bench.”
Because there is no court reporter’s transcript and this is a judgment roll appeal, the
record does not disclose whether the court articulated its reasoning when it issued its
ruling.

9
 DISCUSSION
I. This is a Judgment Roll Appeal
The parties stipulated to designate the original superior court file as the record on
appeal. (See generally Cal. Rules of Court, rule 8.128; Ct. App., Third Dist., Local
Rules, rule 2, Stipulation for use of original superior court file.) As plaintiff
acknowledges, in the absence of a reporter’s transcript or other record of the trial court’s
proceedings, the appeal is treated as an appeal on the judgment roll. (Allen v. Toten
(1985) 172 Cal.App.3d 1079, 1082-1083.) Accordingly, “we ‘ “must conclusively
presume that the evidence is ample to sustain the [trial court’s] findings,” ’ ” and our
“review is limited to determining whether any error ‘appears on the face of the record.’ ”
(Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324-325 (Nielson); accord, Kucker v.
Kucker (2011) 192 Cal.App.4th 90, 93.) “In a judgment roll appeal based on a clerk’s
transcript, every presumption is in favor of the validity of the judgment and all facts
consistent with its validity will be presumed to have existed. The sufficiency of the
evidence is not open to review. The trial court’s findings of fact and conclusions of law
are presumed to be supported by substantial evidence and are binding on the appellate
court, unless reversible error appears on the record.” (Bond v. Pulsar Video Prods.
(1996) 50 Cal.App.4th 918, 924 (Bond).)
II. Standard of Review and Interpretation of Trust Language
“[T]he de novo standard of review . . . 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.” (Pena v.
Dey (2019) 39 Cal.App.5th 546, 551, citing Wells Fargo Bank v. Marshall (1993) 20
Cal.App.4th 447, 452-453.) “Generally, the interpretation of a trust or other testamentary
instrument is a question of law which we independently determine.” (Cook v. Cook
(2009) 177 Cal.App.4th 1436, 1441 (Cook).)

10
 “The paramount rule in the interpretation of a testamentary instrument is that it
must be construed according to the intention of the testator as expressed therein.” (Cook,
supra, 177 Cal.App.4th at p. 1441, citing Prob. Code, § 21102, subd. (a) & Estate of
Kaila (2001) 94 Cal.App.4th 1122, 1131.) “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.] If the language of the instrument
clearly sets forth the intent, the court does not consider extrinsic evidence; it only looks to
extrinsic evidence in the event of an ambiguity. [Citations.] The trial court can consider
extrinsic evidence to reveal a latent ambiguity. [Citations.] The court can also consider
extrinsic evidence regarding the circumstances under which the trust was made, in order
to interpret the trust instrument, but not to give it a meaning to which it is not reasonably
susceptible. [Citations.] However, if the court can ascertain the testator’s intent from the
words actually used in the instrument, the inquiry ends. [Citation.] ‘ “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.” ’ ” (Trolan v. Trolan (2019) 31 Cal.App.5th 939, 949.)
III. The January 20, 1994, Memo
A. Plaintiff’s Contentions
Plaintiff asserts that no evidence before the trial court demonstrated that Betty
“ever completed any of the formal tasks of funding the trusts and providing the required
accounting during the six . . . month period required for her to complete these tasks per
the terms of the Trust, nor did she complete these tasks during her lifetime . . . .”
According to plaintiff, while Betty informally discussed funding the trusts in 1994 and
1998, she never “provided the [plaintiff] with any formal documentation showing that she
followed up and formally funded the two . . . trusts as directed by the trust [sic] of the
original trust.” Plaintiff maintains that the January 20, 1994, memo he created after the
meeting between plaintiff, defendant, Betty, and Betty’s accountant, was only a draft

11
memo, and Betty still had to take steps to formally fund the trusts. He maintains that “the
rough draft allocation document . . . was not an entry into any books, just a general
discussion subject to change and subject to Betty taking steps to actually formally
allocate and fund the two . . . trusts.”
B. Analysis
When John died in 1993, Betty became the surviving spouse under the trust. As
the surviving spouse trustee, Betty was to “divide the trust estate, including all property
received as a result of the decedent’s death, into two shares, each share to be
administered as a separate trust to be known respectively as the ‘Family Trust’ and the
‘Survivor’s Trust.’ ” Under the terms of the trust, “the survivor may amend, revoke or
terminate the Survivor’s Trust, but the Family Trust may not be amended or revoked.”
Thus, if, following John’s death, the subject real property was allocated to the Survivor’s
Trust, rather than the Family Trust, Betty thereafter could do with it as she pleased.
Item number four on the January 20, 1994 memo addressed the separation of the
trust assets into the Family Trust and the Survivor’s Trust. The subject real property was
to be allocated to the Survivor’s Trust. The memo also noted: “it was made clear that the
whole estate is under [Betty’s] control”; “there are some requirements which have to be
met if you are to liquidate any of the assets of the survivors trust which could have tax
consequences”; in order to avoid tax consequences, Betty’s accountant “suggested that
[Betty] think about transferring some of the survivor trust assets to the estates of your
heirs prior to your demise”; and “the survivor trust assets should be retitled out of the
Papais Family Trust.” (Capitalization omitted.)
According to defendant, “the trial court found that the [subject real property] was
an asset of the Survivor’s Trust, which Betty could freely amend, revoke or terminate.”
In support of his position, defendant cites to the trial court’s order and judgment. That
order and judgment, after reciting appearances, states only that, “After consideration of
the evidence offered by way of stipulation by the respective legal counsel, the arguments

12
of counsel, the court’s file in this matter and for good cause, IT IS THEREFORE
ORDERED as follows: [¶] 1. The Petition is denied. [¶] 2. The Respondent is
awarded costs of suit pursuant to a Memorandum of Costs to be filed by Respondent.”
The order and judgment does not expressly state that the trial court found the
subject real property was an asset of the Survivor’s Trust which Betty was free to amend,
revoke, or terminate. However, if the real property was an asset of the irrevocable
Family Trust, Betty could not convey it. Moreover, the January 20, 1994, memo supports
the conclusion that, following John’s death, Betty effectively allocated the subject real
property to the Survivor’s Trust rather than failing to do so and leaving it unallocated to
either of the sub-trusts. The trial court necessarily must have made these determinations
to reach its conclusion. In a judgment roll appeal, such as this, “we ‘ “must conclusively
presume that the evidence is ample to sustain the [trial court’s] findings,” ’ ” and our
“review is limited to determining whether any error ‘appears on the face of the record.’ ”
(Nielsen, supra, 178 Cal.App.4th at pp. 324-325.) We must make every presumption in
favor of the validity of the judgment, and we are required to presume the existence of all
facts consistent with its validity. (Bond, supra, 50 Cal.App.4th at p. 924.)
Based on the evidence summarized ante, including the January 20, 1994, memo
prepared by plaintiff, we conclude the trial court found that Betty effectively allocated the
subject real property to the Survivor’s Trust. With the subject real property in the
Survivor’s Trust, which was fully revocable and amendable during her lifetime, Betty
was free to convey the property. In 2004, she did just that. By grant deed, Betty first
conveyed the property, as trustee, to herself as an unmarried woman. She then granted
the subject real property to defendant as his “sole and separate property,” retaining a life
estate for her own benefit. Thus, as of 2004, defendant owned the subject real property
free of trust, subject to a life estate in Betty. Nothing in the record contradicts this
conclusion.

13
 Plaintiff relies on the language of Commissioner of Internal Revenue v. Stearns
(2d Cir. 1933) 65 F.2d 371 (Stearns) as supporting his contention that Betty did not
formally allocate the subject real property to the Survivor’s Trust in 1994. The language
plaintiff relies on states: “The income must be so definitively allocated to the legatee as
to be beyond recall; ‘credit’ for practical purposes is the equivalent of ‘payment.’
Therefore, a mere entry on the books of the fiduciary will not serve unless made in such
circumstances that it cannot be recalled. If the fiduciary’s account be stated inter partes,
that would probably be enough . . . . But the unilateral act of entering the items in the
account is not conclusive.” (Id. at p. 373.) However, even assuming the applicability of
this language from Stearns, in the context of this judgment roll appeal, we do not find
reversible error on the face of the record. (See generally Bond, supra, 50 Cal.App.4th at
p. 924.) The record supports the conclusion that Betty allocated the subject real property
to the Survivor’s Trust. We conclusively presume that the evidence is ample to sustain
the trial court’s findings. (Nielsen, supra, 178 Cal.App.4th at pp. 324-325.)
On this record, we conclude that Betty allocated the subject real property to the
revocable and amendable Survivor’s Trust in 1994, and, in 2004, she properly conveyed
the property from the Survivor’s Trust to herself individually, and then to defendant. The
property belonged to defendant as his sole and separate property as of January 20, 2004,
subject only to a life estate in Betty. When Betty died, this property was not part of the
trust, and plaintiff was not entitled to any part of it. On this judgment roll appeal,
reversible error does not appear on the record. (See generally Bond, supra,
50 Cal.App.4th at p. 924.)
IV. Transfer of the Subject Real Property Out of the Survivor’s Trust
Article VIII of the trust provides: “So long as either of us is acting as Trustee, we
can exercise any power over the trust property as though this trust had never been
created . . . .” Plaintiff acknowledges this broad language in the trust that authorizes the
settlors to deal with the trust property during their lifetimes. However, he asserts that

14
more specific language in the trust limited or contradicted that power. (See generally
Civ. Code, § 3534 [“Particular expressions qualify those which are general”]; Code Civ.
Proc., § 1859 [in the construction of an instrument, when a general and particular
provision are inconsistent, the latter is paramount to the former, so a particular intent will
control a general one that is inconsistent with it].) Specifically, he relies on language in
Schedule A, Section O of the trust.
Schedule A, Section O of the trust discusses the real property at issue and states in
pertinent part that following the death of the first spouse to die, “the Trustee shall allow
the Survivor to occupy and use until his or her death, the home (or any interest therein)
used by either or both Trustors as a principal residence at the time of the Decedent’s
death. The Trustee shall, at the discretion of the Survivor, sell such home and, if the
Survivor so directs, purchase and/or build another comparable residence to be used as a
home for the Survivor . . . . [¶] Subject to the foregoing occupancies, any such home (or
interest therein) held by the trustee, or the proceeds from the sale thereof, shall be part of
the principal of these Trusts.” (Italics added.)
According to plaintiff, this trust language “indicates that the surviving spouse
could occupy and use the home until his or her death and that the home or the net
proceeds from the sale thereof, shall remain as part of the principal of these Trusts . . .
after the death of the second spouse.” In other words, according to plaintiff, this “is a
clear indication that the trustors . . . intended to allow the surviving spouse to continue to
use the family home until their passing and after the passing of both parents/trustors and
that their two . . . children share in the distribution of the family home or the net proceeds
thereof upon the death of the second parent.”
Defendant maintains that, while the language of Section O of Schedule A granted
Betty authority to live in the residence until her death, it did not require her to hold the
residence as an asset of the trust for her lifetime. Rather, according to defendant, this
“language was likely included in Schedule A of the Trust to protect the Survivor so that

15
he or she could continue to occupy the Residence without fear that the Trustee (should it
be someone other than the Survivor)[4] could sell or otherwise dispose of the Residence
without the Survivor’s consent.” According to defendant, Section O of Schedule A
cannot be interpreted as requiring Betty to retain the subject real property in trust until
her death or to mean that the subject real property was required to be allocated to the
Family Trust.
We agree with defendant that the language of Section O of Schedule A does not
limit the settlors’ ability to do with the subject real property as they wished, unless it was
transferred to the irrevocable Family Trust upon the death of the first spouse to die. The
third paragraph of Section O provides: “Subject to the foregoing occupancies, any such
home (or interest therein) held by the trustee, or the proceeds from the sale thereof, shall
be part of the principal of these Trusts.” (Italics added.) But we do not read this
provision as requiring the subject real property to be divided among the Survivor’s Trust
and the Family Trust, requiring that any portion of the subject real property must be
allocated to the Family Trust, or otherwise requiring that the subject real property remain
part of the principal of both trusts, or a particular trust, until the death of the surviving
spouse. Rather, we interpret this language only to provide that, so long as the subject real
property is “held by the trustee,” it shall be part of the principal of one or both trusts.
Thus, when the subject real property was not allocated to the irrevocable Family Trust,
but instead was held in the Survivor’s Trust, once Betty conveyed the property from
herself as trustee to herself as an individual, the property was no longer “held by the

4 The trust contemplated the surviving spouse not serving as trustee as a result of, among
other things, incapacity or resignation. If neither of the settlors served as trustee, the
parties were to serve as successor co-trustees. However, the trust also contemplated the
resignation of one or both successor co-trustees and the appointment of a trustee not
named in the trust. Thus, it would be possible for the named successor co-trustees, or
even an unnamed successor trustee, to serve as trustee during the lifetime of the surviving
spouse.

16
trustee” as contemplated by this language on which plaintiff relies. Moreover, neither
this language nor any other language in the trust expressly provided that the subject real
property was to be held, in whole or in part, in the Family Trust following the death of
the decedent spouse.
Additionally, as defendant points out, the sentence immediately following the
language on which plaintiff relies indicates: “All taxes, insurance, repairs, and
assessments concerning such home shall, in the discretion of the Trustee, be paid out of
the trust estate containing such home.” (Italics added.) As defendant asserts, this
language contemplates that the subject real property could be allocated to either one or
the other of the sub-trusts, and it was not required that it be allocated to both or to the
Family Trust.
Plaintiff also relies on language in Article VII of the trust, which addresses
distribution after both settlors died. The provisions upon which he relies state: “On the
death of the Survivor, if and to the extent that the Survivor shall not have effectively
disposed of all property of the trust estate of the Survivor’s Trust through a valid and
effective exercise of a power of appointment, all of the remaining assets of the trust shall
be distributed to the then-acting Trustee of the Family Trust, to be added to and form part
of the assets of the Family Trust and to be held, administered, and distributed as set forth
below.” Relying on this language, coupled with the language of Schedule A, Section O,
directing that the home was to be in “these trusts,” plaintiff asserts that there is no
evidence in the record demonstrating that Betty executed a valid power of appointment,5

5 In his brief, plaintiff actually states that there is no evidence that Betty executed a valid
“power of attorney.” Given the context of plaintiff’s argument and the fact that he does
not otherwise refer to power of attorney in his briefing, we understand his argument to be
there was no evidence that she executed a valid power of appointment.

17
and therefore the subject real property should have become part of the irrevocable Family
Trust upon her death.
However, based on the evidence in the record, we presume, in favor of the validity
of the judgment, that the trial court validly found Betty conveyed the subject real
property out of the revocable Survivor’s Trust prior to her death. The provisions of
Article VII of the trust pertain to distribution of trust assets following the death of both
settlors, and thus have no applicability to real property properly transferred out of the
revocable Survivor’s Trust by the surviving spouse during her lifetime.
Plaintiff asserts that he was never told of the transfer of the real property to
defendant notwithstanding the fact that he “became a vested beneficiary of the
irrevocable Family Trust when [John] passed and therefore he was entitled to notice
regarding any assets that should have been included in the Family Trust.” (Italics
added.) We have concluded that the subject real property was not part of the Family
Trust, but rather was allocated to the Survivor’s Trust as evidenced by the January 20,
1994, memo. Thus, even assuming plaintiff’s assertion that he became a vested
beneficiary of the irrevocable Family Trust upon John’s death to be true, this is ultimately
irrelevant here. The subject real property was not allocated to the Family Trust, and
plaintiff has not established any other basis for his purported entitlement to notice
regarding this asset.
Plaintiff repeatedly raises Betty’s alleged duty to obtain up-to-date appraisals of
the trust property as of 2004 when she attempted to fund the two trusts and transferred the
home to herself, to ensure the trust property was allocated properly. Among other things,
he relies on Penny v. Wilson (2004) 123 Cal.App.4th 596 (Penny), in which the court
concluded that “by allocating [certain real property] to the survivor’s trust without taking
into account the appreciation in value of 16 years, [the surviving spouse] disregarded the
purpose of the trust to distribute the trust estate in equal shares among the children.
Therefore his allocation of [that property] to the survivor’s trust is not a binding and

18
conclusive act.”6 (Id. at p. 607.) However, we have concluded that Betty allocated the
subject real property to the Survivor’s Trust on January 20, 1994, as evidenced by the
memorandum of that date, months after John’s death. Penny is inapposite and plaintiff’s
contentions are without merit.7

6 The Penny court also determined that the surviving spouse breached his trust duties by
transferring the most valuable trust asset to another sub-trust, which was to benefit only
her children. (Penny, supra, 123 Cal.App.4th at p. 607.) This holding is not applicable
here where the property at issue was transferred out of the revocable Survivor’s Trust
during the surviving spouse’s lifetime and where, other than the subject real property,
plaintiff has not alleged receiving an unequal share of the trust property.
7 Plaintiff repeats on numerous occasions, often in connection with his arguments
concerning the failure to revalue the trust assets, that the trust required the Survivor’s
Trust and the Family Trust to be of equal value.

As stated ante, the Family Trust was to be funded with the decedent spouse’s
separate property and his or her interest in the community property “to the extent of a
pecuniary amount equal to the maximum sum that can be allocated to a trust that does not
qualify for the federal estate tax marital deduction to any extent, which will result in the
least federal estate tax being imposed on the decedent’s estate,” taking certain specified
matters into account. As for the Survivor’s Trust: “All of the rest and residue of the
assets of the trust estate shall be allocated to the Survivor’s Trust.” The trust then
discusses in connection with the Survivor’s Trust further compliance with the marital
deduction.

Plaintiff does not identify any provision of the trust that requires the two sub-trusts
to be of equal value. The trust does state that, upon the death of the decedent spouse, the
trustee shall divide the trust estate “into two shares,” one for the Survivor’s Trust and one
for the Family Trust. However, it does not state that the trust was to be divided “into two
equal shares.” Black’s Law Dictionary defines “share” as, among other things, “An
allotted portion owned by, contributed by, or due to someone; a single portion distributed
among several.” (Black’s Law Dict. (11th ed. 2019).) It defines “share” as meaning
“equal shares” only in the context of “[o]ne of the definite number of equal parts into
which the capital stock of a corporation or joint-stock company is divided,” a meaning
not at issue here. Long ago, this court stated, in the context of an oral agreement: “To
share does not demand necessarily an equal division.” (Hellings v. Wright (1916) 29
Cal.App. 649, 653.) In the absence of a trust provision specifying that the shares
allocated to the Survivor’s Trust and the Family Trust were to be equal, plaintiff’s

19
 Plaintiff also repeatedly raises the contention that Betty failed to satisfy formal
requirements of the trusts. Among these requirements, Section X of Schedule A provided
that, whenever a trustee makes a distribution or division of trust assets into separate trusts
on a trustor’s death, the trustee may, in his or her discretion, defer that distribution or
division until six months after the trustor’s death. Assuming the subject real property
was allocated to the Survivor’s Trust on January 20, 1994, that was more than seven
months after John’s death. However, the trust does not indicate that this discrepancy
would result in the nullification of the allocation. Plaintiff does not argue that it did, as
his position is that the subject real property was not allocated to the Survivor’s Trust on
January 20, 1994. Reversible error does not appear on the face of the record establishing
that the trial court should have determined that the tardiness of the allocation following
John’s death rendered that allocation a nullity. (Nielsen, supra, 178 Cal.App.4th at
pp. 324-325; Bond, supra, 50 Cal.App.4th at p. 924.) As to any other formal trust
requirements, we presume in support of the validity of the judgment on this judgment roll
appeal that Betty satisfied any necessary requirements. Plaintiff’s contention that Betty
failed to follow other trust requirements is not established on this record. (Nielsen, at
pp. 324-325 [we conclusively presume the evidence is ample to sustain the trial court’s
findings and our review is limited to determining whether reversible error appears on the
record].) Moreover, for the most part, the formal tasks plaintiff raises do not apply, as the

position that the shares allocated to each sub-trust were to be equal is not supported by
the trust language. Indeed, the language directing the allocation to each of the sub-trusts,
allocating the decedent spouse’s separate property and an amount of his or her interest in
the community property with a specified cap to the Family Trust, with all of the rest of
the assets going to the Survivor’s Trust, suggests a likelihood that the two sub-trusts
would not be funded equally.

In any event, plaintiff’s misconception is ultimately not relevant to our
determinations. Particularly, as discussed ante, we reject plaintiff’s argument that trust
assets should have been revalued because we have concluded that the subject real
property was allocated to the Survivor’s Trust in January 1994.

20
subject real property was allocated to the Survivor’s Trust in 1994 and conveyed to
defendant in 2004.
V. Accounting
In his opening brief, in connection with arguing that the subject property and other
trust property should have been revalued in 2004, he asserts that the “only way to find out
how much the value of each asset increased or decreased in value in 2004, is to require
the [defendant] to have each asset appraised at the time the home was transferred to Betty
out of the family trust in 2004, as eleven . . . years had passed since the [death] of [John]
in 1993 and since the time the draft memo regarding the potential funding of the two . . .
trusts was discussed by Betty, her CPA and the two children.” He further asserts that the
only way to know the value of certain assets and stocks was “to obtain formal appraisals
of all of the assets . . . at the time they were to be funded into the separate trusts.”8 He
states that, to date, he “has not received any formal accounting and funding documents as
he requested in the original petition and as required by the terms of the trust.” Plaintiff
notes courts have held that a beneficiary may request a full accounting, yet the trial court
denied his request for an accounting.
In his opening brief’s summary of argument, he does not expressly and
specifically assert that he is entitled to an accounting or that the trial court erred in
concluding that he was not. Instead, he only addresses the subject real property, and, as

8 Plaintiff has offered no factual allegations or evidence addressed to any assets or stocks
or any trust property other than the subject real property. Property in the form of assets
or stocks other than the real property was not the subject of his petition. On appeal, he
does not make specific arguments concerning any assets or stocks or any property other
than the subject real property. Insofar as plaintiff’s contention concerning the value of
assets or stocks relates to the revaluing of the trust property, we concluded in part IV. of
the Discussion, ante, that any revaluing was not warranted because the real property was
allocated to the Survivor’s Trust in 1994. Beyond our discussion of plaintiff’s claimed
entitlement to an accounting, we do not consider any claim as to any property other than
the subject real property.

21
far as an accounting is concerned, only states that, even if defendant provided him with a
full accounting, “this would not address the main issue,” the subject real property.
In the conclusion of his opening brief, plaintiff requests that we “conclude in [our]
de novo review that the Subject Property should have been retained in the Family Trust
as required by the specific language of the original trust detailed in Schedule A of the
Trust and that [defendant] should pay to the [plaintiff] one-half of the net proceeds he
received from the sale of the family home after Betty passed and 10% interest from the
date of sale.” He does not mention an accounting.
The heading and subheading of the Discussion section of plaintiff’s opening brief
are, respectively, “Interpretation of Trust” and “The Trust Language Is Not Ambiguous.”
We have construed this liberally to address plaintiff’s contention addressing the
allocation and conveyance of the subject real property. Plaintiff does not include a
separate heading in his brief asserting his entitlement to an accounting. (See generally
California Rules of Court, rule 8.204(a)(1)(B) [each brief must state “each point under a
separate heading or subheading summarizing the point, and support each point by
argument and, if possible, by citation of authority”].)
Nowhere in plaintiff’s opening brief does he affirmatively request an accounting
supported by meaningful argument and citation to relevant authority. “It is the
responsibility of the appellant . . . to support claims of error with meaningful argument
and citation to authority. [Citations.] When legal argument with citation to authority is
not furnished on a particular point, we may treat the point as forfeited and pass it without
consideration. [Citations.] . . . We are not required to examine undeveloped claims or to
supply arguments for the litigants.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th
41, 52 (Allen); accord, Save Agoura Cornell Knoll v. City of Agoura Hills (2020) 46
Cal.App.5th 665, 704, fn. 14 [“On appeal, ‘ “ ‘the party asserting trial court error may not
. . . rest on the bare assertion of error but must present argument and legal authority on
each point raised. [Citation.]’ [Citations.] When an appellant raises an issue ‘but fails to

22
support it with reasoned argument and citations to authority, we treat the point as
waived.’ ” ’ ”].)
Plaintiff affirmatively asserts his entitlement to an accounting for the first time in
the conclusion of his reply brief. “ ‘ “Obvious considerations of fairness in argument
demand that the appellant present all of his [or her] points in the opening brief. To
withhold a point until the closing brief would deprive the respondent of his [or her]
opportunity to answer it or require the effort and delay of an additional brief by
permission.[9] Hence the rule is that points raised in the reply brief for the first time will
not be considered, unless good reason is shown for failure to present them before.” ’ ”
(Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764, quoting Neighbours v. Buzz
Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8; see also Simpson v. The Kroger
Corp. (2013) 219 Cal.App.4th 1352, 1370 [“Raising a new theory in a reply brief is
improper and unfair to defendants. We may decline to consider an argument raised for
the first time in a reply brief if no good reason is demonstrated for the delay in raising the
point”]; accord, Citizens for Positive Growth & Preservation v. City of Sacramento
(2019) 43 Cal.App.5th 609, 630, fn. 9, quoting Allen, supra, 234 Cal.App.4th at p. 52
[“ ‘[w]e do not consider points raised for the first time in the reply brief absent a showing
of good cause for the failure to present them earlier’ ”].)
We conclude plaintiff has forfeited his contention that he is entitled to an
accounting.10

9 We acknowledge that defendant did, in fact, address the issue of an accounting in his
brief. This does not change our analysis.
10 Even if we were to interpret plaintiff’s briefing broadly as properly raising the issue,
we would conclude he is not entitled to an accounting. He makes no argument in this
regard beyond those addressed to the subject real property and the valuation of other
assets relative to the subject real property. We have concluded that the judgment
correctly determined plaintiff had no right to the subject real property that was conveyed

23
 DISPOSITION
The judgment is affirmed. Defendant shall recover his costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)

/s/
MURRAY, J.

We concur:

/s/
RAYE, P. J.

/s/
KRAUSE, J.

to defendant free of trust in 2004. This is fatal to any basis plaintiff asserts as entitling
him to an accounting, other than a speculative, conclusory, and unsupported claim that
assets and distribution may not have been properly valued. Reversible error on this point
does not appear on the face of the record. (Nielsen, supra, 178 Cal.App.4th at pp. 324-
325; Bond, supra, 50 Cal.App.4th at p. 924.) Nothing in the record supports the premise
that plaintiff is entitled to an accounting.

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