121 P. 407 | Cal. Ct. App. | 1911
The action, brought to cancel a deed made by one George Lewis to the defendant Josephine V. Gleadall and to quiet plaintiff's title as against both defendants, resulted in a judgment for the latter in accordance with their answer and cross-complaint. There is no controversy as to *666 the essential facts in the case. In 1887 Ann Galvin died testate in Contra Costa county and, on the eighteenth day of November, 1898, the superior court of said county, by its decree of final distribution in the matter of the estate of said Ann Galvin, deceased, distributed certain real property belonging to said estate and situated in said county, in accordance with the terms of the will of said decedent, in severalty to Rhody Ringrose as trustee in trust for said George Lewis and Margaret Lewis to sell and dispose of and invest the proceeds in such manner as said George Lewis and Margaret Lewis shall have the benefit thereof, the investment to be made by said trustee as he shall think for the best interest of George Lewis and Margaret Lewis. Plaintiff sold the lands so distributed to him and invested a portion of the proceeds in other lands, a part of which is involved in this action, and he invested the balance of the said proceeds in a mortgage. On August 21, 1905, George and Margaret Lewis and the plaintiff entered into two agreements providing for the separation of said George Lewis and Margaret Lewis and the division between them of all the property then in the hands of the plaintiff, and that plaintiff should hold said property in certain proportions, specified in the agreement, in trust for the use of said parties. Immediately after this division, George Lewis entered into and continued in possession of the real property until his death. Prior to his death, plaintiff paid to him practically all of the moneys specified as belonging to him in said agreements, and to Margaret Lewis, the greater portion of her share. On March 22, 1907, George Lewis, for a good and valuable consideration, conveyed to the defendant, Josephine V. Gleadall, the lands in controversy. Subsequent to the death of Lewis, Ringrose individually joined with said Margaret Lewis and Ellen Lewis, a sister of George Lewis — the latter two being the sole heirs of said Ann Galvin — in an action against these same defendants in which plaintiffs claimed to own the property in controversy here, but they afterward dismissed the suit. Ringrose afterward filed a petition for letters of administration on the estate of George Lewis, deceased, in which he alleged that said Lewis owned this real property at the time of his death. After letters were issued to him Ringrose brought an action against these same defendants to cancel said deed from Lewis to *667 Gleadall, in which action plaintiff claimed that Lewis was the owner in fee simple of the property. Judgment went for defendants. Thereafter the present action was brought by Ringrose and the appeal is from the judgment on a bill of exceptions.
We deem it unnecessary to notice all the questions discussed by counsel, as, beyond doubt, the vital and decisive point as to the termination of the trust must be resolved so as to render impossible a decision in favor of appellant.
Of course, it is elementary and axiomatic that we must look to the instrument creating the trust to determine the nature, extent and object of said trust. (Civ. Code, secs. 2253, 2258, 2267; Tyler v. Granger,
It is also a reasonable requirement, and is the law, that if the language of the trust be ambiguous or uncertain, it will be construed, if possible, in favor of the beneficiary and against the trustee. Or, as it has been expressed in Sprague v.Edwards,
As found in the decree of distribution, this is the language of the first trust in controversy here: "It is further ordered, adjudged and decreed that all that tract of land [describing it] be and the same is hereby distributed in accordance with the terms of the will of said deceased in severalty to Rhody Ringrose, as trustee, in trust for George Lewis and Margaret Lewis, wife of George Lewis, 'to sell and dispose of and to invest the proceeds in such manner' as George Lewis and said *668 Margaret Lewis 'shall have the benefit thereof, the investment to be made by said trustee as he shall think for the best interest' of said George Lewis and said Margaret Lewis." The language of the decree of distribution, it may be said, has the exact significance of the corresponding language of the will. It will be observed that no reason is assigned for the creation of the trust, no time is designated for its continuance, no particular directions prescribed for any payments to the beneficiaries or for any accounting by the trustee and only two duties are imposed upon said trustee. These are to sell certain land and to invest the proceeds for the benefit of thecestui que trust. The trustee performed these two duties. Was there anything else for him to do in order to discharge his trust? It would be impossible to so hold without reading into the declaration of trust something not found therein. We may imagine that the testatrix intended that the trust should continue during the lifetime of the beneficiaries, but, if so, she failed to express her intention. On the other hand, it is easily conceivable that she had good reasons for confining it to the sale of the land and an investment of the proceeds. But whether with or without reason, she did so limit it, and we have nothing to do but to give effect to the language as we find it.
In Sears v. Choate,
The purpose of the original trust, therefore, having been accomplished, the estate of the trustee would be terminated and he would hold nothing more than the bare legal title for the beneficiaries. (Civ. Code, sec. 871; Pomeroy's Equity Jurisprudence, sec. 1065; Perry on Trusts, sec. 520.)
The same result must flow from the construction and operation of the said agreements of the trustee and beneficiaries. One of these agreements, designated as "Exhibit A" in the complaint, is the contract of separation, and states that it is made between George Lewis, party of the first part, and Margaret Lewis, wife of George Lewis, party of the second part. At the end of the agreement, in addition to the signatures of the parties thereto, appear the name of Thos. B. Phelby, Jr., signed as a witness, and the name of Rhody Ringrose, although for what purpose or in what capacity Ringrose signed the agreement does not appear. It is contended, therefore, by appellant "that the mere signing of his name at the end of the agreement, which states distinctly the names of the parties thereto, did not thereby make him a party to such agreement. (Lancaster v. Roberts,
The proper view is, undoubtedly, that by agreement of all the parties in interest the original trust, as we have called it, was superseded by this said contract of August 21st. But it is clear as anything can be that the powers of the trustee are not enlarged. In fact, the trust is plainly not active but what is designated as a simple or dry trust. "In such case, thecestui que trust is entitled to the actual possession and enjoyment of the property, and to dispose of it, or to call upon *671 the trustee to execute such conveyances of the legal estate as he directs. In short, the cestui que trust has an absolute control over the beneficial interest together with a right to call for the legal title, and the person in whom the legal title vests is a simple ordinary trustee." (Perry on Trusts, sec. 520.) As we have seen, this was the view of the situation taken by the parties. George Lewis immediately entered into the possession of said real estate and so continued until his death. The trustee also began dividing the money between the beneficiaries as they had agreed. By the conduct of the parties we have thus a construction of the contract which, it may be said, comports strictly with the terms employed.
We think there can be no doubt that Josephine V. Gleadall, as the grantee of George Lewis, the beneficial owner of the property, has proceeded in accordance with law to enforce a conveyance to her. (O'Connor v. Irvine,
The cases cited by appellant possess distinctive features that warrant the judgment in each, but there is nothing in any of them opposed to the finding of the trial court herein.
In Hayes v. Applegate,
In re Trelease, 49 Misc. Rep. 318, [96 N.Y. Supp. 318], involved the construction of a bequest to the testator's wife of certain property, "the money to be invested in bond and mortgage or in other property, and she shall have the income thereof and she shall have the right to use the principal as she may need it." The disputed point was whether she took *672 simply a life estate. The court said: "It is apparent that the intention of the deceased was that his wife should not only have the income from his property but also the principal, if she needed it. He so stated. She took more than a life interest, and could use the principal as necessity required."
In Dudley v. People's Trust Co., 57 Misc. Rep. 230, [107 N.Y. Supp. 930], the deed of trust "empowered the trustees on the death of the grantor to divide the trust fund into equal parts and hold such parts in trust for the grantor's children, giving each of them during his life the income from a single part, and providing that, on the death of each of such children who might survive the grantor, the principal of his share should be transferred as such child might appoint by will, and in default of such appointment to his legal representatives." The court simply followed the plain language of the trust and held that it was intended that the trustee should hold each part during the life of the beneficiary, and that only after the latter's death should his share go to his devisee or his legal representatives.
The question in Hart's Estate,
A similar question was involved in Gray v. Lynch andMcDonald, 8 Gill (Md.), 419. It was held that the trustees exercised a fair discretion and acted in good faith, and therefore were not liable for loss. Another disputed point decided was that where a testator devised to three trustees, by name, certain property in trust, to sell and convert it into money, and invest the proceeds in some safe and profitable stock, which they were to hold in trust for the sole and separate use of the testator's two daughters during their lives *673 and then for their children, it was a power coupled with an interest or trust, which, upon the death of one could be executed by the surviving trustees.
In Scottish-American Mortgage Co. v. Massie,
The decision in Wirth v. Wirth,
In the Matter of Wilkin,
There is manifestly another aspect in which the case might be viewed so as to uphold the judgment of the trial court. It is set forth in Eakle v. Ingram,
The judgment is affirmed.
Chipman, P. J., and Hart, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 14, 1912.