106 P. 254 | Cal. Ct. App. | 1909
Upon the undisputed facts the judgment of the trial court seems so equitable that it should not be disturbed unless clearly required by the mandate of the law.
The statement of the case, sufficient for the purpose of the decision, is made by respondent substantially as follows: The defendant and Anna H. Slingerland, who was his sister, lived in the same house on the ranch of the latter. She had a safe in which there was a sum of money; on the twenty-fourth day of October, 1906, a short time before her death — which occurred November 10th following — Mrs. Slingerland gave to the defendant the key to the safe and told him there was money in the safe and when she was gone she wanted him to take it and pay her doctor's bill and funeral expenses, buy a monument for her grave at a cost of $75 and whatever was left to send to her sister, Jane Donaldson; that at the same time she told him the safe was his; defendant said to Mrs. Slingerland that he would carry out her wishes in the matter; the morning after the funeral defendant opened the safe and found therein the sum of $442. Out of this money he paid $152 for funeral expenses, $117.50 for the doctor's bill; he purchased a monument for which he agreed to pay $65, and *719 sent the sister, Jane Donaldson, the sum of $160, aggregating about $53 more than he received.
The other transaction of which complaint is made relates to certain hogs sold by defendant. He and the deceased had been partners in the stock business and about August 1, 1906, they sold some hogs for $225; deceased proposed to defendant that if he would allow her $125 of this amount he might have the balance of the money and what hogs were left. The proposition was accepted by defendant. Subsequently he got up six or seven head of wild hogs having the Slingerland ranch mark. He fed them and finally sold them for about $60.
The only witness at the trial was defendant, who related what occurred between him and deceased on the night of the 24th of October, 1906. We deem it advisable to state his exact language as follows: "Mrs. Slingerland said to me, 'The key of the safe is between the carpet and the wheel,' and she says 'Get it for me.' I went and got the key and handed it to her. She took the old key in her right hand, 'Now,' she says, 'Russ, there is nothing to administrate on when I pass away,' or am gone, words to that effect. 'You open that safe and you will find money enough to pay my funeral expenses and my doctor's bills, and $75 for a little monument like that put at Henry's grave, and if there is any left, whatever is left send my sister Jane.' . . . I said to her, 'I will as long as you wish it; I will attend to that for you.' She then handed me the safe key which I have to the present time." From the foregoing testimony we think the court was justified in holding that a trust was created in said money for the purposes clearly set forth in said conversation. The "relation of personal confidence" with Mrs. Slingerland was voluntarily assumed by defendant, and he therefore became her trustee. (Civ. Code, sec. 2219) There is no possible doubt that a contract could have been lawfully made between the parties for the desired purpose, and hence it could be the subject of a valid trust. (Civ. Code, sec. 2220)
By her words and acts the trustor indicated with reasonable certainty her intention to create a trust and the subject, purpose and beneficiary of the trust, and it follows that a trust was created as to the trustor. (Civ. Code, sec. 2221) There is no dispute that a trust as to personal property can be created by parol, but it is contended by appellant that a mere *720 agency was created which terminated on the death of the principal, that the defendant "is trying to carry out without probate the provisions of a simple attempted nuncupative will which was absolutely void," and that respondent's theory of the transaction cannot be maintained for the additional reason that there was no actual delivery of the money, as respondent testified that he did not take manual possession of it until after the death of his said sister.
There is no controversy, and can be none, as to the intention of Mrs. Slingerland that respondent should dispose of the funds as he has done, and therefore this vital question of what was intended — often embarrassing in kindred cases — is entirely eliminated. Indeed, the whole contention of appellant rests upon the assumption that the complete title to the money remained in Mrs. Slingerland until the time of her death. This, in our opinion, is born of a misconception of the trust transaction. The only reasonable construction of what was done and said is that she surrendered to respondent complete control and dominion over the property. If she had taken the money from the safe and delivered it to him with similar instructions, her act and declaration would have had no greater significance. She gave the safe to respondent, handed him the key, told him to dispose of the money after her death according to her directions, and he accepted the trust. It is difficult to understand how the transaction would have a different coloring if she had actually handed him the money or if he had taken it from the safe before her death. He certainly had the means of securing it, but there was no reason why he should not leave it in this safe place, until the occasion should arise for the disposition of it, which the evidence showed was near. Suppose she had said to defendant, "There is some money in the safe which I intrust to you; here is the key. After my death pay the doctor's bill, my funeral expenses, erect a seventy-five dollar monument over my grave and send the balance to our sister Jane," and he had agreed to do so, would anyone contend that a valid trust was not created or that it would make a particle of difference whether he actually took possession of the money prior to her death? The fact is that in case of such a trust, where the intention is clear that the trustee shall have present dominion over the property for the purposes of the trust, it is immaterial whether *721 he take immediate possession of the property or not. The distinction as to the element of delivery between the creation of a trust in relation to personal property and a gift of the same has probably not been given due weight by appellant and has led to a misconstruction of some of the decisions. The cases cited, we think, in view of the peculiar facts and circumstances involved, are generally harmonious.
In Bedell v. Scoggins et al. (Cal.), 40 P. 954, as stated in the syllabus: "Defendant gave deceased a note for money which he owed her, by which he promised to pay $400 for her funeral expenses or to return it to her on demand. During her last illness, deceased handed the note to defendant, saying, 'Here is something for you.' Held, that an express trust, to expend the money, after her death, for her funeral expenses, was created." The case is criticised by appellant but it has not been overruled, and as far as it declares the creation of a trust it simply gives effect to the intention of the parties and does not contravene any principle of law.
In Hellman v. McWilliams,
In Booth v. Oakland Bank of Savings,
In the late case of Cahlan et al. v. Bank of Lasen County,ante, p. 533, [
The California cases cited by appellant are very easily distinguishable from the case at bar. *723
In Flanagan v. Brown,
In Pullen v. Placer County Bank,
In De Martini v. Alegretti,
There can be no doubt that by the instrument in question there was an attempt made to effect a disposition of the property after death, and therefore the intention could not legally be carried into effect in opposition to the plain requirement of the statute in reference to the execution of such instruments.
But here we think a fair interpretation of the transaction leads to the conclusion that a trust was created with a present interest transferred to the trustee, with directions to carry out the terms of the trust after the death of the trustor. If the question were doubtful, it should be resolved in favor of respondent in view of his expenditure in good faith of the funds according to the declared will of deceased.
As far as the hogs are concerned, the court was justified in finding that they were sold by deceased to respondent, and *724 nothing of unfairness appears in respondent's conduct in relation thereto.
The judgment and order are 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 January 10, 1910.