73 P. 606 | Cal. | 1903
Lead Opinion
This is an appeal by Ida Amadi, who is admitted to be the sole heir at law of Henry Pichoir, deceased, from an order of distribution by which the whole of the estate of said decedent is distributed to certain persons named as trustees in a duly probated will of the decedent. The estate of the testator consists of certain real property of the value of about ten thousand dollars, and personal property of the value of about one hundred and forty-two thousand dollars. It does not appear whether or not the decedent had any real property at the date of the will. The main contentions of appellant are: 1. That the will contains a forbidden trust to convey real property, and is therefore void as to such property; and 2. That in the trust attempted to be created by the will the real and personal property are so interwoven as to be inseparable, and therefore the whole trust fails. It would probably take *684 more space here to state accurately the contents of the will than to copy it. It is as follows: —
"I, Henry Pichoir, do declare this to be my last will, hereby revoking all other wills by me at any time heretofore made.
"First: I devise and bequeath all my property and estate wheresoever situate unto Antoine Borel, Ami Vignier, and Hamilton Smith, Jr., all of San Francisco, California, as joint tenants and not as tenants in common with right of survivorship, in trust, however, for the following uses and purposes and none other, that is to say: to pay over to my sister, Ida Amadi, widow, now residing in the city of Liege, in the kingdom of Belgium, during the term of her natural life, the sum of eighteen hundred dollars in gold coin of the United States, or its equivalent a year, payable semi-annually in installments of nine hundred dollars each in advance. Said installments are to be paid first out of the income of my estate, but if the income shall not be sufficient to meet them, then resort shall be had to the principal for any deficiency. If the estate in their hands at my death or at any time thereafter shall exceed in value the sum of twenty-five thousand dollars in said gold coin, then I direct my trustees above-named to pay over unto William Mooser, architect, now residing at number 722 Union Street, San Francisco, California, or if he shall not be alive at the time of my death, then to his wife, or if she shall not be alive at the time of my death, then to such of his children as shall then be living, to be divided among them equally, share and share alike, the excess of my estate over twenty-five thousand dollars, but not exceeding however five thousand dollars in said gold coin. And I do further direct my said trustees, upon the death of my said sister, to convey and pay over such of my estate as shall then be remaining in their hands unto the said William Mooser, or if he shall not be then alive then to his wife, or if she shall not be then alive then to and among his children who shall then be living, to be divided among them equally share and share alike.
"Second: I appoint the said Antoine Borel, Ami Vignier, and Hamilton Smith, Jr., to be the executors hereof, and desire that no bonds or other security be required of them by any court for the faithful performance of their duties as such. *685
"Third: I give to my said executors and trustees full power and authority to sell the whole or any part of my estate at public or private sale, with or without notice, to such persons, for such price, and upon such terms as to them shall seem fit, and without the necessity of applying to any court for previous authority so to do and the proceeds of such sale or sales and the rents, issues, and profits of my estate, to invest as they may deem best, with like powers of resale and reinvestment when and as often as to them shall seem advantageous to said estate."
One of the trustees, Hamilton Smith, Jr., is dead.
The will clearly contains a trust to convey all the real property of the testator to the Moosers. It has no words of devise to them. It neither contains the words "devise" nor any other word or words equivalent thereto. If it were not for the words "trust" and "convey," there would be no operative words in the will by which the title to the real property would in any way pass to the Moosers. And the way provided for the vesting of the title in them being unlawful and forbidden, the real property was not disposed of by the will, and vested at the death of the testator in the heir at law. The case, in this respect, cannot be distinguished from Estate of Fair,
We have fully considered the very able arguments made by counsel for appellant in support of their contention that in this case it should be held, as was held in the other Fair case which is reported in
There was evidence in the case that the value of the present amount of personal property of the estate is such that the income therefrom exceeds the amount of the annuity to the sister during her life; and it is contended that the court should have distributed to the trustees merely enough of the personal property to produce an income equal to the annuity. In our opinion, this contention is not maintainable. Where the instrument creating an express trust conveys or transfers to the trustee the whole of certain property without limitation, the rule that the trustee takes only such an estate in the trust property as is necessary to the discharge of his trust duties refers only to the quantity of his estate in the property, — as, for instance, an estate for years, an estate for life, or an estate in fee, — and not to the extent and value of the property itself. This is the meaning of the current of authorities, although, perhaps, there may be some expressions found in the books which go further. The correct rule goes no further than is expressed in Morffew v. San Francisco etc. R.R. Co.,
The order appealed from is reversed, and the court below is directed to make and enter an order distributing all the real property of the decedent to the appellant, Ida Amadi, and all the personal property to Antoine Borel and Ami Vignier, in trust for the uses and purposes declared in the will of the said Henry Pichoir, deceased.
Van Dyke, J., Henshaw, J., and Lorigan, J., concurred.
Concurrence Opinion
I concur in the judgment and in all that portion of the opinion relating to the validity of the trust as to the personal property.
So far as the attempted trust as to the realty is concerned, *690
I can see no material distinction between the case at bar andEstate of Fair,
Shaw, J., and Beatty, C.J., concurred.
Rehearing denied.