Sanford v. Sanford

The contention that in the will in the case at bar the direction to convey was not one of the trusts intended to be declared by the testatrix is no more maintainable than a like contention was in the Pair case. The trust here was to hold the land and dispose of the income for a designated period, and then convey it to the beneficiaries; and these were exactly the provisions of the Pair will. The fact that in the latter will the words “trust” and “convey” were used in close proximity, while in the will in the case at bar there were some other words between “trust” and “convey,” makes no difference; the intervening words do not change the sense, and the meaning in both wills is the same.

It is said that the words in the will, “the lands hereby conveyed to them,” do not necessarily mean a conveyance m fee, because there may be “conveyed” an estate in lands less than a fee. But a general grant of land without limitation carries a fee. The words used by the testatrix in granting the land to the trustees are exactly those that were used in granting - lands to all the other devisees; and would any one claim that the latter did not take a fee? It is said that, no matter what general words are used in a trust, the trustee takes only such estate as is necessary for the trust declared; but that principle has no force here, because in the case at bar, as in the Pair case, the estate created by the general words is necessary to the execution of the trust. The trustees had to “convey” to the beneficiaries the estate which had been granted to the former by the testatrix; the beneficiaries could get such estate in no other way, for the will here is as barren of any words of direct devise as was the will in the Pair case. The contention that the will can be construed as a mere attempt to “prescribe” the persons to whom the real property should belong, is sufficiently answered in the opinion of the court delivered by Mr. Justice Garoutte in the Pair case.

The attempted trust during the few years before Huntington Sanford shall have attained the age of twenty-five years is apparently of little importance; but we think it is invalid,— if not for the reasons given in the Pair case,—because it is, in its main feature, not imperative, but merely discretionary; and it is conceded by respondents that if such be the case the

Our conclusion is, that the trusts attempted to be created by the said twenty-ninth paragraph of the will are invalid and void; that the one fourth of the rancho in question must be distributed to the appellant and the other heirs at law of the decedent; and that the part of the decree of distribution appealed from must be reversed.

The foregoing views make it unnecessary to pass upon the appeal from the order denying a new trial; and that appeal may be disregarded.

That part of the decree of distribution appealed from is reversed.

Henshaw, J., Van Dyke, J., and Garoutte, J., concurred.

In sustaining the validity of the twenty-ninth paragraph of the decedent’s will the superior court distributed the property therein named as follows:—

“There is hereby assigned, distributed, and set over unto said Mary Sanford and Huntington Sanford two thousand eight hundred and twenty-nine acres and sixty-five hundredths of an acre of said Rancho Los Meganos in satisfaction of the bequest made to them in and by the last will and testament of" said Josephine L. Sanford, deceased, subject, however, to the trust therein declared in favor of said Pro

fessor George Davidson, Dr. C. N. Ellinwood, and Andrew S. Moseley, to hold and receive the rents, issues, and profits thereof, and apply the net amount of the same to such extent/ and at such time or times as in their judgment may be proper to and for the use and benefit of said Mary Sanford and Huntington Sanford, children of said John Edward M. Sanford, of Dorchester, Mass., nephew of said deceased, until said Huntington Sanford shall attain the age of twenty-five years, whereupon said trust shall terminate.”

The provision in the will giving to the trustees a discretion in determining the times at which they are to apply the income to and for the use of the beneficiaries, as well as the amount which they shall apply at any one time, does not render the trust invalid. Section 857 (subd. 3) of the Civil Code authorizes the creation of an express trust “to receive the rents and profits of real property, and pay them to, or apply them to the use of, any person . . during the life of such person, or for any shorter time, subject to the rules of title II of this part.” The section is general and comprehensive in its terms, and as there is no provision or limitation in reference to the amount which may be so paid or applied at any one time, or the times for paying or applying the same, or as to the intervals which are to take place between the times at which the amounts are to be applied, it is left to the creator of the trust to make such provision in reference thereto as he may desire. He may direct the time or times at which the income shall be applied, as well as the amount to be applied at each time, or he may leave the determination of each of these matters to the discretion of the trustee. There is no “direction” in the will for any accumulation of the income, and by its express terms the trustees are directed to apply the whole of the net income of the rents, issues, and profits of the trust estate to and for the use of the beneficiaries. While the amount to be applied from time to time is left to their discretion, the direction to apply the net amount of the income—which includes the entire net amount—is imperative and may be enforced. (McDonald v. McDonald, 92 Ala. 537 .) The trust does not extend beyond the life of Huntington Sanford, and, as the will provides that the whole of the net income shall be applied to the use of the beneficiaries, there is no portion “undisposed of” to go to the person entitled to

The direction to the trustees to convey the property to Mary Sanford and Huntington Sanford is not declared by the testatrix to be within the purpose of the trust created by her. In this respect the will differs radically from the will of Senator Fair, and the rule declared for the construction of that will is inapplicable. The conclusion reached in that case ■ was based upon the ground that the will created an express trust to convey the land to the designated persons; whereas in the present will the direction to convey is not made the purpose of any express trust, but is independent of the clause creating the only express trust which the will creates. The word by which the direction is introduced—“whereupon”— is equivalent in meaning to “after which,” and implies a transition of thought or action, and that the matter introduced by it is distinct from the preceding matter, and is in subsequence thereto. Grammatically, the word is a relative conjunction, by which the proposition set forth in the antecedent clause is to he followed in time and in act by the matter set forth in the concluding clause. The language of the concluding clause is, however, to be construed independently of the antecedent clause as fully as if it were not connected therewith. In the present case the antecedent clause is that which creates the trust for applying the income, and the will is to be read as if the sentence had terminated with that clause and the testatrix had commenced a new sentence as follows,— viz., “After which,” i. e. after the termination of the trust thus created, they shall convey the property to Mary Sanford and Huntington Sanford.

It is not contended by the appellant that the testatrix has in

The estate which passes to the trustee in the case of an express trust is measured by the duties of his office,—is that which is necessary to enable him to exercise the trust imposed upon him, and is to be ascertained by a consideration of the subject-matter and purpose of the trust. (Morffew v. San

As above stated, her direction for the conveyance by the persons who had been named as her trustees for a certain purpose was not a part of the trust imposed upon them. Such direction was only incidental to her intention as to the disposition of the property covered by the trust, and could have been given to any other person as well as to them. The effect of the direction was not changed by the fact that it was given to them rather than to another. Indeed, if the testatrix had merely declared that upon the termination of the trust the property should be conveyed to Mary Sanford and Huntington Sanford, without designating any person by whom the conveyance should be made, a court would have no hesitation in holding this declaration to be equivalent to a direct devise, and in distributing it to them as such. Whether in such case the testatrix designates a person to make the conveyance, or directs the conveyance to be made without designating the person by whom it is to be made, is immaterial. The right to the property does not in either case depend upon the conveyance, but is derived directly from the testator by virtue of the will. (Manice v. Manice, 43 N. Y. 303 ; Watkins v. Reynolds, 123 N. Y. 211 ; Roberts v. Carey, 84 Hun, 328 ; Moore v. Appleby, 36 Hun, 368 , affirmed in 108 N. Y. 237 ; Campbell v. Stokes, 142 N. Y. 23 ; Metcalf v. First Parish in Framingham, 128 Mass. 370 ; Underhill on Wills, sec. 469.)

The estate in the land given by the will herein to Mary Sanford and Huntington Sanford is dependent upon the precedent estate given for the purpose of the trust, and is limited only by that estate. Upon the termination of that estate they will be entitled to the immediate possession of the land. They were “persons in being” at the death of the testatrix, and their estate in the land is therefore a vested remainder (Civ. Code, sec. 694),—an estate which vested in them in right upon her death, and which will vest in pos

I am of the opinion, therefore, that the action of the court in distributing the property directly to them subject to the precedent estate for years, was correct, and that its decree should be affirmed.

Temple, J., and Beatty, C. J., concurred in the dissenting opinion.

Rehearing denied.