Luscomb v. Fintzelberg

This is an appeal by defendants from a judgment entered against them after a trial of the cause. The only points, raised by the appellants are based upon their demurrer to the complaint which was overruled.

The complaint alleged that Charles J. Fox died on September 21, 1898, a resident of San Diego County in this state, leaving a will which was duly admitted to probate and letters testamentary issued to the plaintiffs herein; the said will provided that “After paying all my just debts and liabilities, I bequeath and devise to my beloved wife, Susie Staples Fox, all my property, real and personal, of every description, to have and to hold, sell, lease and otherwise dispose of for her own use and behoof during her life. And my said wife may by will dispose of all household furniture, books, fixtures and other personal belonging, as she may desire, notwithstanding these may have been bequeathed by me. All of my property

The complaint then describes particularly the personal and real property of the estate (consisting principally of real

The complaint then proceeds to allege that after she came in possession of said property she converted and transferred nearly all of said residue of said estate and received the avails and proceeds thereof, exceeding in amount the sum of fifty thousand dollars, a large portion of which avails and profits remained uneonsumed and unexpended at the time of her death; that defendants on their appointment as executors of her will took possession of all the residue of said estate distributed to her and all such avails and profits which included among other property, the nature of which was unknown to plaintiffs, deposits in various banks, aggregating $7861.50, and three promissory notes for ten thousand dollars each particularly described in the complaint, and which were secured by mortgage; that plaintiffs are entitled to the possession of all the property, avails, and profits of the estate of

The prayer was for a judgment that plaintiffs are entitled to the possession of all the property, avails, and profits of the estate of Charles J. Fox distributed to said Susie Staples Fox for the term of her natural life remaining at the time of her death; that defendants be declared to hold said property, avails, and profits in trust for plaintiffs, and that defendants disclose, account for, and deliver to plaintiffs all of said property, together with the avails and proceeds.

A demurrer, general and special, was interposed by defendants and overruled, and the only points made on this appeal, as we have already stated, are addressed to the correctness of that ruling.

The questions which appellants assert are the principal ones for consideration, in reviewing the ruling on the demurrer, relate to whether a valid trust, or a valid limitation over under the decree of distribution, was created under the will of C. J. Fox. In that regard it is insisted that the trust which the will purported to create was invalid because (following the argument of appellants) in order to constitute a valid trust there must be, among other essentials, a reasonable certainty in the subject-matter of the trust; that the devise of the property is to the widow for life with absolute power of disposal; that the trust attempted to be created applies to the "property remaining at her death,” which may he all the property taken by her in the first instance, or a less quantity, or none at all, depending on the use by her of the power of disposition and hence there is no certainty as to the subject-matter of the trust and it is invalid for that reason.

In addition it is claimed—and this is the particular point to which counsel for appellants address themselves—that under the will the widow of deceased is given an absolute power of disposition of the property taken by her, and that notwithstanding the use of the words “for her own use and behoof during her life,” such power of absolute disposition given her by the will had the effect of vesting her with an

This last point, as we understand the argument of counsel for appellants, is also made under the decree of distribution, the claim being that in legal effect the distribution to her of the property was absolute, and, as to the real property, vested her with an estate in fee.

But as far as these points are addressed to the provisions and terms of the will itself, any construction of that instrument in this action is foreclosed by the decree of distribution, and the rights of the parties must be measured solely by a consideration of that decree.

If it were conceded (which of course it is not) that the construction of the terms of the will for which appellants now contend is the construction which should have been given by the superior court in the distribution of the estate of Fox, the proper and appointed time for the widow to have insisted on a distribution of the property to her absolutely, on the theory that the trust was invalid for uncertainty, or void for repugnancy, was upon the hearing for distribution, and if the construction of the will was adverse to her contention, to have had it corrected on a direct attack on appeal from the decree of distribution.

Under our system it is the province and duty of the superior court in its jurisdiction over the administration of estates to determine on final distribution the “persons and the proportions or parts to which each shall be entitled.” (Code Civ. Proc., see. 1666.)' It was necessary, therefore, for the court,. as an incident to this duty, to determine whether or not a valid trust had been created by the testator, Fox. It could not make complete distribution unless it passed upon that question. It was equally within the jurisdiction of the court, and its duty, to determine and declare in the decree the scope and terms of such trust as it found valid; to select .the trustees and to make distribution to them of the- trust property, as well as to determine what other persons had legal or equitable rights to the distributable property of the estate, and the extent and nature of their interests. Having jurisdiction to determine these matters on distribution, when the decree does so determine them, although the determination may be incorrect, it is conclusive as to the rights of heirs, legatees,

This is so well settled by a uniform current of authority as to render further particular discussion unnecessary. (Estate of Hinckley, 58 Cal. 457 ; Daly v. Pennie, 86 Cal. 552 , [ 21 Am. St. Rep. 61 , 25 Pac. 67 ]; Morffew v. San Francisco & S. R. R. Co., 107 Cal. 587 , [ 40 Pac. 810 ]; William Hill Co. v. Lawler, 116 Cal. 359 , [ 48 Pac. 323 ]; Crew v. Pratt, 119 Cal. 131 , [ 51 Pac. 44 ]; Goldtree v. Allison, 119 Cal. 344 , [ 51 Pac. 561 ]; Goad v. Montgomery, 119 Cal. 552 , [ 63 Am. St. Rep. 145 , 51 Pac. 681 ]; Estate of Trescony, 119 Cal. 568 , 51 Pac. 951 ]; Keating v. Smith, 154 Cal. 186 , [ 97 Pac. 300 ]; Taylor v. McCowen, 154 Cal. 798 , [ 99 Pac. 351 ]; Estate of Learned, 156 Cal. 309 , [ 104 Pac. 315 ]; Hardy v. Mayhew, 158 Cal. 95 , [ 139 Am. St. Rep. 73 , 110 Pac. 113 ].)

Under these authorities the appellants are precluded from making an attack on the decree of distribution. It is conclusive on the validity of the trust and that the widow was entitled to take the property distributed to her for use only during her life. In most of the eases cited the attack was just such a one as appellants here attempt to make. It was insisted that certain trusts declared in the will were invalid for various reasons and should have been disregarded in the distribution of the estates and were to be disregarded notwithstanding their validity was established by the decree, and, necessarily, it was sought to impeach the decree of distribution by resort to the will. In some of the eases it was conceded that the trusts created by the will were invalid, but it appeared that distribution had been made upon the theory that they were valid. In all of them, however, as the decree of distribution had become final, it was held that the validity of the trust, the power of the trustees, and the extent of their title was conclusively determined by the decree of distribution, and not subjéct to collateral attack by resort to the will.

The only case relied on by appellants in support of their claim is McCloud v. Hewlett, 135 Cal. 361 , [ 67 Pac. 333 ]. But this decides nothing in conflict with the authorities cited

As to the point that in legal effect, under the decree of distribution, absolute title to the property was vested in the widow. The doctrine under which appellants assert this claim and seek to have it applied to the decree of distribution, is that where a devise (using this term as applied to the decree of distribution) is accompanied by an unlimited power of disposal of an estate given to the devisee, to be exercised in any manner the devisee may see fit, a limitation over is void, as being repugnant to the principal devise, which by virtue of the absolute power of disposition vested in the devisee the estate absolutely.

Numerous cases are relied on by appellant in support of this doctrine, but they need not be cited, nor even particularly discussed, because that rule and . the authorities apply to a devise cast in very different terms from the devise we are considering here.

In many of the cases relied on there was a general devise of the estate to the first taker, with an absolute power of disposal and a limitation over, and it was held that the limitation over was repugnant to the general devise and void. In others there was language used by the testator which might indicate an intent to create a life estate, but as there was an absolute power of disposition given and no limitation over, it was held that the devisee took the estate in fee. In some (clearly not applicable) the devise to the first taker was absolute in terms, followed by trust provisions of a precatory nature, or by words of recommendation, or desire as to contingent remainders.

Here there is no general devise to the widow, nor any language indefinite or indeterminate as to the quantity of estate she took. By the express terms of the decree it is defined to be an estate for life. While she is given a power of disposition of the property in fee, it is not a power of disposition with an unqualified right to the use of the proceeds for any and all purposes, but for the particular purpose that the proceeds may be devoted by her “for her own use”; such use meaning, of course, personal use by her for her support, comfort, and maintenance during life. There is also an express limitation over of “all of said property remaining at her death.”

The authorities are uniform to the effect that where such are the terms of a devise—a life estate .only being expressly given to the first taker, with power of disposition of the property for a certain purpose, with a devise over—the life estate is not enlarged into either a fee or an absolute right of property, and a limitation over will be good.

In the case of Hardy v. Mayhew, 158 Cal. 95 , [ 139 Am. St. Rep. 73 , 110 Pac. 113 ], which involved the construction of the terms of a decree of distribution in several respects similar to that involved here, it is said: “The distinction between the case of an intended gift of an absolute title to one with an attempted gift over of simply ‘what remains unexpended’ by the donee at the time of his death, where the gift over is void because in derogation of the absolute fee given the first taker, and the case of a gift of a life estate with a power of disposition for a particular purpose only, with an express gift over of what remains unused for such purpose, is recognized by all the authorities.” After citing and quoting from authorities, the court proceeds as follows: “It appears to be settled by the overwhelming weight of authority that the mere fact that the first taker is invested with the power to dispose of or consume the whole of the property for certain purposes does not invest him with absolute ownership thereof and render the gift over

Counsel for appellants claim that in' considering the validity of a devise over, a distinction is to be made between a devise which gives the use and disposition during life of personal property only, as in Hardy v. Mayhew, and the devise here, which applies to real property in which a life estate is given with power of disposition of the fee.

We are referred to no authority by counsel which makes any such distinction. On the contrary, it is said in 2 Under-hill on Wills, section 687: “If it is clearly apparent that the testator intended that he (the life tenant) should take only a life estate, and the property is to be used for his support and maintenance, his interest, at least where real property is concerned, will be confined to that, though he will have power of disposition over the fee and a right to use the proceeds during his life for his support or for other purposes intended by the testator.” (Also 4 Kent’s Commentaries, 18th ed., p. 371.)

No such distinction either is made in the following cases, among numerous others which might be cited, sustaining the validity of a devise over of the remainder of the estate devised after the death of the first taker who is given a life interest and a life estate in both personal and real property, with full power of disposition thereof during life for his personal comfort, maintenance, and support: Douglass v. Sharp, 52 Ark. 113 , [ 12 S. W. 202 ]; Steiff v. Seibert, 128 Iowa 746 , [ 6 L. R A. (N. S.) 1186 , 105 N. W. 328 ]; Hamlin v. U. S. Express Co., 107 Ill. 443 ; McCullough Adm’r v. Anderson, 90 Ky. 126 , [ 7 L. R. A. 836 , 13 S. W. 353 ]; Pennock v. Pennock, L. R. 13 Eq. 144; Herring v. Barrow, L. R. 13 Ch. Div. 144; Richards v. Morrison, 101 Me. 424 , [ 64 Atl. 768 ]; Welsh v. Woodbury, 144 Mass. 542 , [ 11 N. E. 762 ]; McMillan v. Farrow, 141 Mo. 55 , [ 41 S. W. 890 ]; Parker v. Travers, 74 N. J. Eq. 812 , [ 71 Atl. 612 ]; Terry v. St. Stephens etc., 79 App. Div. 527 , [ 81 N. Y. Supp. 119 ]; Kennedy v. Kennedy, 159 Pa. St. 327 , [ 28 Atl. 241 ]; In re Tilton, 21 R. I. 426 , [ 44 Atl. 223 ].

It is insisted further in this action that the defendants as they hold the property as executors of the estate of Mrs. Fox Watson, should have been sued as such and not as individuals.

“Property which the testatrix in her lifetime held in trust, or in which she had merely a life-interest, are not assets of her estate, and no act of her executor as to such property will render him or his sureties liable upon his bond.” (Probate Court v. Williams, 30 R. I. 144 , [19 Ann. Cas. 554, 73 Atl. 388 ; In re Stuarfs Will, 115 Wis. 294 , [ 91 N. W. 688 ]; Nickals v. Stanley, 146 Cal. 724 , [ 81 Pac. 117 ]; Hardy v. Mayhew, 158 Cal. 95 , [ 139 Am. St. Rep. 73 , 110 Pac. 113 ].)

Several other objections were raised by special demurrer, relating principally to defect in parties defendant, nonjoinder or misjoinder of parties. We do not think these points have any merit, and hence do not discuss them.

The judgment appealed from is affirmed.

Henshaw, J., and Melvin, J., concurred.