Code of Civil Procedure 872.840 CCP – Property Subject to Express Trust; Division or Sale; Duty of Trustee (Manner of Partition)

California Code of Civil Procedure 872.840 is the California partition statute that provides for the partition of property subject to an express trust. The statute provides that:

(a) Where the property or an interest therein is subject to an express trust, the court may, in its discretion, order that the property be sold.

(b) Upon division or sale of such property, the property or proceeds of sale allotted to the trustee of the express trust shall be held by him upon the trust therein stated, and no further action by the court pursuant to Section 873.840 is required.

California Code of Civil Procedure 872.840

This statute has very limited application only to trust matters. Indeed, a discussion of this statute appears in the preeminent case of Richmond v. Dofflemyer (1980) 105 Cal.App.3d 745, 758 as follows:

As noted above, section 872.840 provides that where the property or an interest therein is subject to an express trust the court may, in its discretion, order that the property be sold. The section then provides that the property or proceeds of sale allotted to the trustee shall be held by him upon the trust and no further action by the court is required. This section is explicit and gives the trial court the power to use its own sound discretion in determining whether under all of the facts and all of the evidence presented to it the property should be partitioned in kind or sold.

One unpublished case relating to the sale of a residence by a probate court provided as follows:

With very little elaboration, Constable quotes provisions in the Trust documents that preclude the trial court from “assum[ing] any continuing jurisdiction,” and that bestow discretion upon the trustee to divide and distribute the Trust property when required. Constable concludes, without amplification, that the “trust document limit[ed] the court’s participation in trust affairs.” Constable then quotes Code of Civil Procedure section 872.840, which provides that when the court orders property subject to an express trust to be sold, the proceeds allotted to the trustee are held by the trustee and no further action by the court is required. However, Constable fails to then relate how this provision applies to the matter at hand, i.e., whether Code of Civil Procedure section 872.840 is relevant here at all. It is the burden of the appellant to demonstrate that the trial court erred such that reversal is merited. (Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.) Constable has failed to present a cogent argument with specific, relevant citations to the record, to demonstrate that the probate court lacked jurisdiction to make its order. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245, fn. 14, citing Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Whether Constable has waived the argument altogether or simply failed to demonstrate error, the argument ultimately fails as we explain below.[1]Constable v. Stueve (Cal. Ct. App. Sept. 6, 2006) No. E037989, 2006 WL 2556497, at *2

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References

References
1 Constable v. Stueve (Cal. Ct. App. Sept. 6, 2006) No. E037989, 2006 WL 2556497, at *2
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