Hogan v. Wyman

| Or. | Sep 15, 1868

Boise, J.

The case presents a question of fact which must be determined from the evidence; and this court finds that the equities of the respondent, as above stated, are fully supported by the evidence; and that Wyman, at the time of his purchase from Wren, had notice of these equities belonging to the plaintiff.

As to the execution of the will of Mrs. McNulty, it is claimed:

1st. That McCormick, being a witness to the will, could not take a trust estate under it; that witnesses to wills are disqualified by the Statute, page 388.

As McCormick had no beneficial interest in the bequest, but was merely a conduit to pass the property to the church, we think he had no such interest as would disqualify him.

2d. That the executors did not qualify by giving bonds, &c.

This we think was unnecessary; as the property vested in them by the will, they had the legal estate and could convey it, to fulfill the trust imposed on them.

It was unnecessary for them to make a report of their sale to the Probate Court.

This was a trust estate, and it is the peculiar duty of a court of chancery to see that the trust is properly executed by the trustees; and the court will not allow.a trust to fail for the want of trustees to execute it. Suppose this had been left to endow a college, the property might have remained in the hands of the trustees and their successors for many years, and then been sold for the benefit of the institution as its exigencies should demand, and these proceedings would have been without the jurisdiction of the Probate Court.

The decree is affirmed.