172 P. 804 | Or. | 1918
The evidence shows that on the day first hereinafter stated, the grantor was the owner in fee of the real property described in a deed, which, omitting her signature and seal, the names of the witnesses to the conveyance, and the usual acknowledgment thereof, reads:
“This indenture made and entered into this 10th day of February, 1909, by and between Clara Friendly (widow) of Portland, Multnomah County, Oregon, party of the first part, and Emma Cohn, Laura Eosenthal, Celia Friendly, Julius C. Friendly, and Seymour C. Friendly, children of the said Clara Friendly, parties of the second part, as trustees,
“Witnesseth: That the said party of the first part for and in consideration of the sum of Ten Dollars to her in hand paid, the receipt whereof is hereby acknowledged, does hereby bargain, sell, assign, transfer and convey unto the said Emma Cohn, Laura Eosenthal, Celia Friendly, Julius C. Friendly and Seymour C. Friendly, as Trustees, the parties of the second part herein, all the following bounded and described .real property, to wit:
“Lots one (1) and eight (8) in Block two hundred and fifty-four (254) in the city of Portland, Multnomah County, state of Oregon,
“Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging.
“To have and to hold the same unto the said parties of the second part in trust for the following uses, to wit:—
“First: — To take possession of said property, manage and control the same, lease, mortgage, sell or convey the same, and to re-invest the proceeds thereof in such other property or securities as to my said trus*646 tees shall be deemed advisable, and to pay over to me such sum or amounts of money as may be necessary for my support and maintenance during the term of my natural life, and for the payment of all my just debts, and to borrow money for my support, should the same be necessary, and to hold and pledge said property as security for the same.
“Second: — Upon my demise, after deducting from said trust estate any sum or sums of money which may have been borrowed or advanced thereon by my said trustees or any of them with sis per cent interest thereon, my said trustees shall hold all the rest and residue of said property or the proceeds thereof in trust for the use and benefit of my said five children, Emma Cohn, Laura Eosenthal, Celia Friendly, Julius 0. Friendly and Seymour C. Friendly,'share and share alike, during the term of their and each of their natural lives, and shall pay over to my said children, in manner aforesaid the rents, issues, profits and income from said property, or the proceeds thereof during the term of their and each of their natural lives.
“Third: — Upon the death of any of iny said children, without leaving issue then living the share or interest belonging to said deceased child, under this trust, shall immediately vest in and be enjoyed by all my remaining children, then living, share and share alike.
“Fourth: — Should any of my said five children above named, die leaving issue, then my said trustees shall pay over to said issue such part or portion of the income of my said estate hereby conveyed in trust, which the parent of such issue if living, would be entitled to receive under this trust, during the life or lives of such issue, or until the termination of the trust estate as hereinafter limited.
“Fifth: — Upon the death of the last surviving child of my said five children above mentioned, the trust estate hereby created, shall terminate, and all property, rights, interests and effects of said estate, shall immediately vest in the issue of any and all of my said five children, if any, then living, and to their heirs and*647 assigns forever, in fee simple absolute, to be held and enjoyed by them per stirpes and not per capita.
‘ ‘ Sixth: — Should there be no living issue of my said five children, or of any of them, upon the death of the last surviving child of my said five children, then the estate, rights, interests and effects of the said trust estate hereby created and the whole thereof, shall immediately vest in the heirs at law of such last surviving child of my said five children, in fee simple absolute, and this trust estate shall terminate.
“Seventh: — The trustees hereby appointed under this indenture or a majority of them shall have power to do and perform any and all acts and things necessary and proper in the management and performance of their said trust, and upon the death of any of said trustees, all the powers hereby created, shall immediately vest in the surviving trustees, and said trust shall be carried on and be executed by the said surviving trustees, or a majority of them, in the same manner and to the same extent as is herein provided for all of said trustees above named, until the death of the last surviving trustee, when the trust estate hereby created shall terminate as above provided.
“In witness whereof I have hereunto set my hand and seal the day and year above written.”
Mrs. Friendly died January 22, 1910, leaving surviving her sons and daughters, the defendants herein. No other disposition of the real property so described having been made, Emma Cohn on May 23, 1911, commenced a suit in the Circuit Court of the State of Oregon for Multnomah County against her brothers and sisters to obtain a construction of such deed, setting forth in the complaint a copy thereof and alleging that her mother intended to invest the grantees therein named with full power to lease, mortgage, sell and convey the premises, as well after the grantor’s death as prior thereto, and to invest and reinvest the proceeds arising therefrom in other property or securities; that
“That neither of the children of said Clara Friendly has any living issue and there is no person or persons beneficially interested in said estate, except the plaintiff and the defendants herein.”
The prayer of the bill was for a construction of. the grantor’s intent as evidenced by the trust deed; that it might be decreed that the trustees were vested with full and complete power to sell the lots and every part thereof, but if any doubt on that subject existed, the court by virtue of its plenary authority to administer trust estates so as to prevent waste and destruction thereof, would empower the trustees to sell and convey the real property, or such part thereof as might be deemed advisable in order to conserve the estate
Julius C. Friendly, a bachelor, Emma Cohn, a widow, Celia Friendly, a spinster, Laura Eosenthal and Jacob Eosenthal, her husband, and Seymour C. Friendly and Maud Friendly, his wife, and also the defendants as trustees of Clara Friendly, deceased, on January 2, 1912, leased these lots for a term of 30 years to the plaintiff, as the Crown Trust Company, which stipulated to pay the rent reserved, to liquidate the taxes thereafter annually to be levied, and the assessments which might be imposed upon the premises, and within five years to erect at its own. expense upon the real property a building of the value of not less than
.The trustees on April 30, 1912, jointly appeared under the title of the original suit, so instituted by Emma Cohn, and by their petition represented that pursuant to the decree construing the terms of the deed, they had leased the real property as hereinbefore stated; that the yearly income derived from the land did not exceed $1,620, while the taxes annually levied thereon were more than $2,000, besides the cost of keeping up the repairs, paying insurance and incurring the burdens of municipal assessments; that in order to effect an advantageous lease of the real property they were obliged to grant an option to purchase the lots, at a price greater than the then market value. A copy of the lease was made a part of the petition, the prayer of which was that the act of the trustees in such particular be ratified and confirmed, and an order to that effect be entered at the foot of the former decree in that suit, providing that when the option was exercised the trustees be authorized to
The plaintiff, relying upon the covenants contained in the lease, erected upon the lots a building at a cost of $87,470.54, besides incurring other expenses, and on September 29, 1915, notified the defendants of its election to purchase the real property at the stipulated price of $200,000. The trustees thereupon subscribed, caused to be sealed, witnessed and acknowledged a deed of the lots that was tendered to the plaintiff, but it refused to accept the instrument asserting that after their mother’s death the trustees were powerless to sell and convey the premises. The plaintiff also refused to pay the monthly rental of $750 which matured October 1, 1915, and thereupon tendered to the defendants a reassignment of the lease and demanded a repayment of the money which it had expended, amounting to $104,527.28. The defendants refusing to
“No particular form of words is necessary to create a power of sale. Any words which show an intention to create such power, or any form of instrument which imposes duties upon a trustee that he cannot perform without a sale, will necessarily create a power of sale in the trustee. Thus an assignment in trust to pay debts will necessarily imply a power of sale, though none is given in words”: 2 Perry, Trusts and Trustees (6 ed.), § 766. To the same effect, see, also, 39 Cyc. 351; 1 Devlin, Beal Estate, 3 ed., § 432, note 7.
The testimony does not show what sums of money, if any, were advanced or borrowed by the defendants, or either of them, and employed in supporting their
The power of the trustees to sell the land in order to meet the payment of the money so advanced is clearly implied, and such authority could legally be exercised after the death of Mrs. Friendly.
“But where the instrument is indefinite or inconsistent, the court can look at the declarations of the donor and consider the surrounding circumstances in determining just what the intention of the donor was”: 39 Cyc. 197.
We conclude, therefore, that all the powers expressly conferred by the first clause of the trust deed are applicable to all the other paragraphs thereof when essential to give validity thereto and to carry out Mrs. Friendly’s intention, thereby authorizing the defendants, as well after as prior to her death, to do and perform all the acts and duties specified in the first clause of the deed, except such as relate to the care and support of the trustor.
‘ ‘ The power conferred is an authority to sell during the life of the husband, and a peremptory direction to sell immediately after his death. As the husband of the testatrix was the executor, and during his life the sole possessor of the power, he might have made a sale deferring the time of settlement. This, however, he did not do. He did not sell the property, but entered into an agreement with the plaintiff, which gave her the privilege of buying at any time within three and a half years. By this agreement she was entirely free; she was not bound to purchase. But he, and in the event of his death his successor in the trust, was bound to sell to no one else during the period fixed. The vice of the agreement is that it bound the trust estate, no matter what the detriment to it might be, without giving it any corresponding advantage. This was not a use of the power, but a surrender of it for the time. It suspended the exercise of the discretion which had been given the executor, and defeated the direction in the will for an immediate sale upon his death.”
In a note to that case it is said:
“A trustee, under a deed of trust, has no power to impose new terms or conditions, or to alter, vary, or dispense with those contained in the deed.”
The trust deed herein did not contain, as the provisions of the will in the last case, a command to dispose of the real property in any designated time. By the express terms of their mother’s conveyance the defendants were empowered to take possession of, manage, control, lease, mortgage, sell and convey the land and invest the proceeds thereof “as to my said trustees shall be deemed advisable. ” Pursuant to this grant of
“So a power given to executors to rent, lease, repair, and insure implies a legal title in them.”
It follows from these considerations that the decree should be affirmed, and it is so ordered.
Affirmed.