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.

I. BRIEF OVERVIEW OF KING V. JOHNSTON