107 Cal. 587 | Cal. | 1895
Matthew Crooks died in the month of February, 1879, being then the owner of property amounting to seven hundred and fifty thousand dollars, or thereabouts, in value, and consisting mainly of real estate in Marin and other counties of this state. He had at that time about two thousand five hundred acres in the county named, including two certain parcels of salt marsh and tide lands containing together fifteen and twenty-one one-hundredths acres, which marsh and tide land was unproductive and unimproved. Decedent left
Said deceased left an olographic will, of which the portions material to the present controversy are as follows: “ I bequeath all my property, both real and personal, to my beloved wife, Susan Crooks, in trust for oar children [naming them, there being ten in all], subject to the following conditions: That out of the income of the estate my wife, before mentioned, will pay all taxes and assessments, all just debts and current expenses, as they become due, maintain and educate our before-mentioned children, that she will pay after my decease the sum of $5,000 in gold coin to those of the before-mentioned children who attain the age of twenty-one years. It is my wish and desire that none of my property be sold or disposed of in any other way than by lease until my youngest surviving child shall be twenty-one years of age. It is my wish and desire that my wife, Susan Crooks, shall have control of my estate, as well as the income derived from it, during her natural life, and, in case of her death or disability to manage the estate, then I appoint the majority of the surviving
“ Should it be desirable by a majority of my executors herein appointed to sell a part of the unproductive estate hereby granted before the final distribution of the same I desire that the proceeds be divided among the surviving heirs, as before directed, but none of the improved or productive property shall be sold before final distribution of the same, and it is my will and desire that the before-mentioned executors shall carry out the provisions of this will without the giving of bonds or the interference or intervention of any court.”
No person was, in direct terms, appointed executor of the will, but, in accordance, we suppose, with the testator’s apparent intent (Civ. Code, sec. 1371), letters testamentary thereon were, in March, 1879, issued to Susan Crooks, the surviving widow, by the probate court of the city and county of San Francisco, in which court the will was admitted to probate. Two of the children of said deceased were yet minors at the time of the commencement of this action, February 18,1889.
Upon the petition of the executrix, said probate court, on the eighteenth day of December, 1879, made a decree of partial distribution of the estate of said deceased, containing, among other directions, the following: “ That there be and is hereby distributed to her [said Susan] one undivided one-half of the property and tracts of land hereinafter described, to be held by her in her own right, being the one-half thereof belonging to her as common property of the community of the said Matthew Crooks and herself, and the remaining half for the term of her natural life upon the trusts declared in the will of said Matthew Crooks, deceased, as construed by this court as follows: To pay from the income
On April 21, 1884, said Susan Crooks executed to James M. Donahue two certain deeds, each purporting to -“grant, bargain, sell, and convey” to said Donahue, his heirs and assigns forever, one of the parcels of land, respectively, in which the plaintiffs assert an interest here. Such deeds were signed and acknowledged by Mrs. Crooks in her individual name, no reference being made in them to her capacity of executrix or trustee, or to the power of sale. The two deeds were substantially identical in form, differing as to the premises described. The sale was not reported to the superior court, nor was any confirmation of the same asked or obtained. Donahue paid to Mrs. Crooks for such land at the time of the execution of said deeds the sum of four thousand dollars. Such title as he then acquired has passed to and is now vested in the defendant the San Francisco & North Pacific Railway Company, which has apparently succeeded to the interests of the other defendant companies. Since the execution of said deeds Donahue and the successive railroad companies claiming under him have had actual possession of the lands, and erected thereon, as the court found, “ expensive and valuable improvements of a permanent character partaking of the realty.” Some other facts attending the execution of said deeds will be stated in connection with our views of the intent of the grantor. It was alleged in the complaint that Susan Crooks refused to join in the action as plaintiff, and she was therefore
1. Susan Crooks was, of course, the owner of an undivided one-half of the land, and the judge who tried the case was of the opinion that, in virtue of the will and the decree of distribution, she held the other “one-half in trust for purpose of sale as to unimproved land,” and that “ full power and authority was specially delegated to her to sell the unimproved lands and premises as should seem desirable to her.” Appellants, however, insist that no trust for the sale of lands is created by the will (and this is conceded by respondents); that the power of sale, such as it is, given to the widow is conferred upon her as executrix and not as trustee; that this was a naked- power not coupled with an interest, and hence, under section 1561 of the Code of Civil Procedure, no title passed to Donahue, because the sale to him was not confirmed by the court having probate jurisdiction of the estate of Matthew Crooks.
Counsel agree that the will created a trust to receive the rents and profits of the one-half interest subject to Matthew Crooks’- testamentary disposal, and to apply the same as in the will directed; and we are of opinion that the widow took a life estate in such one-half of all the lands upon the trusts created by the will, with an added power of sale—exercisable in her discretion— of the unproductive estate. In our opinion, also, the power of sale is given to Mrs. Crooks as trustee, and • not as executrix, during her life and ability to act. It will be observed that the testator provided that the proceeds of sale should “ be divided among the surviving heirs as before directed,” thus requiring that such proceeds should be held for final apportionment among the heirs who should survive the period of distribution in the same manner as the unproductive land itself would be held in default of the execution of the power. The money to be derived from the sale is not to be used to pay expenses, or even legacies, or for any purpose which might be expected to arise in the performance of
The lands thus delivered into the hands of Mrs. Crooks as trustee ceased to be part of the estate in the course of administration, and the probate court and its successor, the superior court in the exercise of probate jurisdiction, had no further control of the same. (Barker v. Stanford, 53 Cal. 451; Wheeler v. Bolton, 54 Cal. 305; Buckley v. Superior Court, 102 Cal. 6; 41 Am. St. Rep. 135.) The circumstance that at a future time there is to be a division of the property among remaindermen, beneficiaries of the trust, does not, it seems, affect the rule. (In re Thompson, 101 Cal. 351, 353.) It was within the province of the probate cpurt to determine whether a valid trust had been created, but the power to regulate and direct its subsequent administration lay with the court possessed of general equity jurisdiction. (Estate of Hinckley, 58 Cal. 518; In re Thompson, supra.) (It will be noted that the decree of distribution here was made several year? before the enactment of sections
2. It is claimed by respondent that Mrs. Crooks had not merely the life estate, but the fee, in trust; and that a power of sale being added, she had thus a power coupled with an interest in the fee. If this is so, then the case requires no further consideration, for upon that assumption her deeds were doubtless sufficient to pass the title. But the quantity of interest which passes to the trustee in case of an express trust is commensurate with the necessities of his office; the trustee shall have an estate in fee, if that is necessary, to enable him to perform the duties imposed upon him, although it is not in terms given to him by the instrument creating the trust; on this principle a devise of lands in trust to sell clothes the trustee with the fee, because necessary to the execution of the trust. The rule being compendiously stated that the trustee “ will take an estate adequate to the execution of the trust—no more nor less.” (Perry on Trusts, sec. 320; Young v. Bradley, 101 U. S. 787.) In the present ease there is no trust for the purpose of sale; for trusts are always imperative (Kidwell v. Brummagim, 32 Cal. 443); and here the power to sell is, by the terms of the will, left wholly discretionary. (Civ. Code, secs. 847, 857; Cooper v. Platt, 98 N. Y. 35.) And the will does not impose upon the widow any other duty which requires for its discharge an estate in the land greater than for her life. So that there is no enlargement of her life estate to be implied from
It is suggested by respondents that the trustee took the fee in virtue of the provision of section 863 of the Civil Code. But, as said of a like statute by the court of appeals of New York: “ This section does not prevent a valid limitation of a remainder to the beneficiaries of a trust to take effect upon its termination. The declaration that a valid express trust shall vest the whole estate in the trustees, and that the beneficiaries shall take no estate or interest in the land, clearly refers, as the subsequent sections show, to the trust estate and not to an interest in the land not embraced in the trust.” (Stevenson v. Lesley, 70 N. Y. 516, 517.) So, here, we think that said section 863 has application only to the particular estate in trust, and not to the remainder in the plaintiffs.
In any aspect of the case we conclude that the power of sale of this land in the hands of Susan Crooks was, as to the remainder after the termination of her life estate, a naked power to sell such remainder, and, as a consequence, that the efficacy of her deeds to pass more than an estate for her life depends upon their validity as an execution of such a power. Her authority is well illustrated by the case of Bloomer v. Waldron, 3 Hill, 361, 365, where it was said that the deed of persons occupying a relation to the title similar to that of Mrs. Crooks here “ would carry their life estates, but on any interest beyond that their deed could stand on their power of sale only, independent of their life estates.” Accordingly, it is contended strenuously by appellants’ learned counsel that since Mrs. Crooks owned in her individual right an undivided one-half interest in the fee of the land, and was besides vested with a life estate
“ The donee of a power may execute it without referring to it or taking the slightest notice of it, provided that the intention to execute it appear.” (1 Sugden on Powers, 356.) The question is as to the evidence by which the intention must appear. Thurlow, Lord Chancellor, said in one case: “ You must not go out of the instrument itself to gather the construction of it.” (Andrews v. Emmot, 2 Brown Ch. 303.) Appellants hardly press their contention so far; as we understand their argument, they deduce the conclusion—it may be correctly—from the authorities they cite that in no case where the power is not coupled with an interest is the power to be deemed executed, unless, 1. There is
It was said in Roake v. Denn, supra, that “ there is not one instance in which the power of appointment is held to have been executed by a will, unless there is a reference in the will either to the power or to the property which is the subject of it, or unless the instrument be wholly inoperative without supposing the execution of a power.....It has been argued that this is a question of intention, and so it is, but then there are rules by which the intention is to be collected, and it would be dangerous to leave a question of this kind to loose and vague conjecture.” But it was remarked by Lord Wynford, in delivering his opinion in the same case: “I agree that there are certain rules by which the intention is to be collected, but I think they are bad rules, and I hope they will not long continue to be binding on the judges.” And Sugden observes, speaking of the same subject some years later: “It is impossible not to be struck with the number of instances where the intention has been defeated by the rule distinguishing power from property. The statute [1 Viet., c. 26, sec. 27, much like section 1330 of our Civil Code in its effect] now executes the supposed intention in every case of á general disposition by will when the testator has a general power. But in other cases the rule of law is to prevail. The mischief has been increased by the courts, in some recent instances, adopting a strict construction,
Such ‘ true doctrine,’ as declared by Judge Story, is this: “If the donee of the power intends to execute, and the mode be in other respects unexceptional, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. I agree that the intention to execute must be apparent and clear, so that the transaction is not fairly susceptible of any other interpretation. If it be doubtful, under all the circumstances, then that doubt will prevent it from being deemed an execution of the power. All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument.” He adds: “It is sufficient that it shall appear by words, acts, or deeds demonstrating the intention.” (Blagge v. Miles, supra.) Following this case are many decisions applying, and some of them enlarging, the principle thus stated. In Funk v. Eggleston, supra, the subject of the power being real estate, and the question being as to the execution of the power by a will, the court held that in order to arrive at the intention of the testatrix the facts in the case dehors the will—such as the very small quantity of land involved, the circumstance that the same must be distributed among more than two hundred heirs of the
In these authorities we see, at bottom, no more than the familiar'principle of evidence now embodied in our code, and which applies alike to deeds and wills: “For the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument, and of the parties to it, may also be shown, so that the judge be placed in the position of those whose language he is to interpret.” (Code Civ. Proc., sec. 1860.) This has been said here to be “the only rule of much value” in the construction
But it is said that the evidence admitted is insufficient to sustain the inference of an intent on the part of Mrs. Crooks to act under the power. We recognize the rule that the intent to execute the power must be clear, so that such intent is not left in doubt; but within this principle we are of opinion that the evidence here, taken in connection with the deeds themselves, justifies the conclusion that Mrs. Crooks intended to execute the power and to convey the entirety of the land to Donahue, and that her deeds had that effect. It appears from the record that prior to such deeds the San Francisco & San Eafael Eailroad Company, one of the defendants, had commenced an action in the superior court of Marin county to condemn a large part of the land in question, for the purpose of constructing its railroad track thereon and for the construction of wharves and other terminal facilities at Point Tiburon on the shore of the bay of San Francisco. Mrs. Crooks and the plaintiffs, her children, were parties defendant' in that action. The company began the work of constructing the track before the deeds were executed. Donahue was a director of the company and acted in its behalf. Mrs. Crooks testified: “I knew where the land was situated, and had reason to know that Donahue wanted it for some railroad purposes. I knew of the railroad having been built, and in the same public manner I knew he had established a station at Tiburon. I remember being sued by Donahue before I made the deed to him. All
The judgment and order should be affirmed.
Haynes, C., and Belcher, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
McFarland, J., Henshaw, J., Temple, J.
Hearing in Bank denied.