143 P. 712 | Cal. | 1914
The plaintiffs filed their complaint wherein they asked that the defendants be compelled to recognize the validity of a certain trust-deed and to be governed by its provisions. A general demurrer to the complaint was sustained without leave to amend, and from the judgment entered for defendants plaintiffs appeal.
It is alleged that Rogers was the administrator of the estate of Eben Smith Niccolls, deceased; that plaintiff, Melinda Clemens Niccolls is the widow of said Eben Smith Niccolls; that the other plaintiffs are surviving children of said decedent and are his heirs at law; that Rogers resigned as administrator of the Eben S. Niccolls estate and Layne was appointed his successor; that on April 13, 1907, and from thence to the date of his death, November 4, 1909, one Robert Niccolls, an uncle of Eben S. Niccolls, was seized in fee simple of certain tracts of real estate, descriptions of which are fully set forth in the complaint; that during said period Robert Niccolls was possessed also of a large amount of personal property, which is also described; that Frances Niccolls is the widow of Robert and was his wife at the time of the execution of a certain purported deed of trust which is set forth in full in the complaint. The said deed by its terms seeks to create a trust to take effect upon the death of Robert Niccolls in favor of Frances Niccolls, his widow, and it also provides that upon her death the property shall be distributed to certain beneficiaries, Eben S. Niccolls being named as one of them. It is principally upon the terms of this deed of trust, so called, that plaintiffs base their supposed cause of action. The complaint contains averments that Robert and Frances Niccolls duly acknowledged the trust-deed of April 13, 1907; that the executed instrument was afterwards delivered to Eben Smith Niccolls by the trustors in escrow to be delivered according to its terms to the trustees, Thorp, Weldon, and Rogers; that after the death of Robert Niccolls in 1909, Eben Smith Niccolls delivered the deed to Rogers, who in writing accepted the trust declared therein; that Thorp had predeceased the trustor Robert Niccolls and Weldon refused to act; that Rogers took charge of all of Robert's property, recorded the deed, and proceeded to carry out its terms, but that subsequently, in collusion with Frances Niccolls, the surviving trustor, he caused himself, on her petition and his own, to be appointed administrator of the *446 estate of Robert Niccolls, deceased, since which time they have refused to perform their duties under the trust-deed or to recognize its validity. It is further set forth that Robert Niccolls left no children, and no father nor mother surviving him.
By the first paragraph of the trust-deed the trustors, Robert and Frances Niccolls, reserve the right to revoke or modify the said deed at any time during Robert's life. The second paragraph is as follows:
"That the said Trustors by these presents, to take effect only upon the death of said Robert Niccolls, one of said Trustors, sell, assign, transfer, and confirm unto the said Trustees, in joint tenancy, and to the survivor of them and their successors and assigns, all our property of every kind and nature, both real and personal, that we may have and own at the time of the deathof the said Robert Niccolls, one of said Trustors, to HAVE AND TO HOLD the same unto the said Trustees as joint tenants and not as tenants in common with the right of survivorship, and to their successors and assigns, in TRUST and CONFIDENCE, nevertheless for the purposes hereinafter expressed."
Clearly this did not convey any present interest in the property of the trustors. It only related to the property which they should possess at the time of the death of Robert. It purported to convey no interest in any property owned by them at the date of its execution, and the mere fact that they possessed the same property then which was theirs when Robert Niccolls died, is a coincidence which in no manner alters the purport or effect of the instrument. While it is competent to create a trust which shall take effect after the death of a grantor, nevertheless there must be some interest or estate which passes at the time of the execution of the deed. In the recent case ofTennant v. John Tennant Memorial Home,
Appellants seek to make the further point that under the allegations of their pleading, defendant Rogers is estopped by his conduct and Frances Niccolls is estopped by her concurrence therein, from denying the efficacy of the trust-deed; but no conduct could give vitality to a void instrument. The only interest in the property asserted by plaintiffs is one alleged to have been created in favor of Eben S. Niccolls by the deed of trust. That instrument being void, no trust in *448 the property of the deceased Robert Niccolls may arise by the conduct of his supposed trustee nor of his alleged cotrustor.
The judgment is affirmed.
Henshaw, J., and Lorigan, J., concurred.