Trusts and Estates
Ca. Trs. & Estates Quarterly Volume 15, Issue 4, Winter 2010
- Directed Trusts Come of Age In California
- From the Editor
- Inheritance Rights of Posthumously Conceived Children In California
- Revitalizing a Stale Trust: Improvement, If Not Perfection
- What About the Children? Family Allowances In the Age of the Revocable Trust - Is Parson Still Good Law and Should It Be?
- REINTRODUCTION OF THE TERM "TRUSTEE DE SON TORT" TO THE CALIFORNIA TRUST LEXICON
REINTRODUCTION OF THE TERM "TRUSTEE DE SON TORT" TO THE CALIFORNIA TRUST LEXICON
By Ralph E. Hughes, Esq*
In King v. Johnston1, plaintiff, a trust beneficiary, contended that the defendant was liable either because (i) the defendant had actively participated in, or knowingly participated in, a trustee’s breach of trust, or, (ii) the defendant had acted as the "trustee de son tort" of a decedent’s trust. The court accepted plaintiff’s arguments – in particular the contention that defendant could have liability based upon her status as a "trustee de son tort," a doctrine introduced into California’s common law of trusts as early as 1857 and last employed in a reported decision in 1925.2 The King v. Johnston court commented, "the equitable principles on which the notion of a trustee de son tort is based remain relevant today."3
This article will: (i) discuss the history of the common law concept of "trustee de son tort," (ii) comment on the use of the doctrine in King v. Johnston, (iii) discuss the distinction between the concepts of "trustee de son tort" and "de facto trustee," and (iv) examine some of the potential uses and limitations of the "trustee de son tort" concept.