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husband, who sued for specific per or words are necessary, but, wherevformance, and she resisted on the er an intention to create a trust can ground that the realty was held in be fairly collected from the language trust. Concerning her estate, the of the instrument and the terms emcourt held that it was not affected ployed, such intention will be supby the words “in trust and that, and that, ported by the courts.

The owing to the utter absence of terms fact that the times and manner of of the trust or of its administration, accounting for the rents and profits she took a fee.

of the trust estate are not fixed canIn Orr v. Yates, 209 Ill. 222, 70 not render the trust void. The law N. E. 731, William H. Yates devised will compel the trustee to render a farm to a trustee for the sole use accounts in proper manner and at and benefit of his daughter during proper

times. The absence of her life, and at her death without specific directions as to when and in issue for the benefit of the widow, if what manner the trustee shall renliving, and at the widow's death der his accounts simply leaves that the land was to be divided between matter to be determined by conthe testator's brothers and sisters struction. If the trustee and cestui and their heirs. No provision was que trust disagree on that subject, made for accounting or manner of the courts may be resorted to for a conducting the farm. The court settlement of the differences." said: “It may be conceded that the In Colton v. Colton, 127 U. S. 300, declaration of a trust must be rea 32 L. ed. 138, 8 Sup. Ct. Rep. 1164, sonably certain in its material terms, the will reads thus: "I give and and that this requisite of certainty bequeath to my said wife, Ellen M. includes, first, the subject-matter or Colton, all of the estate, real and property embraced within the trust; personal, of which I shall die seised second, the beneficiaries or persons or possessed or entitled to. I recin whose behalf the trust is created; ommend to her the care and protecthird, the nature and quantity of tion of my mother and sister, and interests which they are to have; request her to make such gift and and, fourth, the manner in which provision for them as, in her judgthe trust is to be performed. If the ment, will be best.' language is so vague, general, or Notwithstanding this indefinite equivocal that any one of these nec language, which hardly could be essary elements of the trust is left more uncertain, the court held that in real uncertainty, the trust must the widow took the property affected fail; or if any one of the three things by a trust for the benefit of the denecessary to constitute a trust is cedent's mother and sister. wanting, that is, first, sufficient “But giving a trust in discretion words to raise it; second, a definite as to the method of carrying out a subject; and, third, a certain or definite purpose does not render the ascertained object,-the trust will trust void, and if the trustee refuses fail. It is not practicable to adopt altogether to exercise the discretion any specific definition of a trust with which he is invested, the trust which can be applied to all cases. must not, on that account, be defeatMany attempted definitions are to be ed.” 26 R. C. L. 1184. found in the textbooks and decided Weatherhead v. Sewell, 9 Humph. cases, but it is unimportant here to 272, was a case where the language accept one rather than another. All of the will was: “My estate to be must agree that it is not necessary equally divided among my children, to the validity of a trust that every to each of my daughters a small element necessary to constitute it tract of land, . my lands and must be so clearly expressed in de- slaves to be equally divided amongst tail in the instrument creating it

my children.that nothing can be left to inference It was held in construing the will or implication. No particular form that the clause "to each of my

(- Or. -, 199 Pac. 633.) daughters a small tract of land” was or may not have been provident, as void for uncertainty, but the court the sequel shall prove, but it was not did not set aside the whole will for unlawful, and the will in that rethe minor uncertainty. Other spect is a valid document, declaraauthorities are cited in the brief of tory of his disposition of his estate. the petitioner, but in the main they Summing up, we hold that there are precedents which deal only was no error in striking out of the with a certain clause of the will, but original petition the conclusions of do not allow it to overturn the entire law stated as grounds for the coninstrument.

tention that the will was void. The The trust created by this will, petitioner has had the benefit of a however, is reasonably certain for full argument and examination of all practical purposes for the man the questions so raised. The ciragement of a business during so long cuit court before which this proceeda period as twenty years. It de

It de- ing was instituted had ample jurisclares that it is made “to avoid as diction of the suit, whether it be one far as possible any loss or deprecia- merely to set aside the will as void tion of the estate.” Here we have for undue influence, or whether the the principal object for which the issue was the construction of the trust was formed. As a means and will with a view of manner by which this result is to be having it declared necessity of attained, with a view of final dis- void. In the ab- allegation of

illegal contract. tribution of the property among his sence of an allegadescendants, the testator has given tion of an illegal contract void as to his trustees full and complete against public policy, the will canpower and authority over his estate, not be attacked upon that ground. with the right to full and complete Further, no agreement of stockholdpossession and control of the same, ers proceeding from any private and they are directed to keep surplus mercenary consideration of benefit funds invested in good securities. to themselves in which other memAs part of it, they are to pay month bers of the corporation could not ly allowances to his wife and share has been shown. The teschildren, and to their descendants tator, in disposing of his own propby right of representation. The erty, had a right to direct his tustees are directed to accumulate trustees to vote and act as he himenough to pay off the debts and self could have done while living. obligations, and when that is ac Even conceding that there was a complished they shall disburse the

contract, there is nothing to show excess of such reserve to his wife that it was hostile to the interest of and children, and finally upon the any stockholder, or disqualifying in termination of the trust, at the end

its effect upon the trustees who have of twenty years, they shall divide

succeeded to the interests of the testhe property among his descendants.

tator. Finally, the trust established It would be impossible for a testator by the will is sufficiently certain in to foresee and provide for all of the all of its features for practical opdetails to be observed in the man

eration. agement of a trust estate of such

To close this opinion, we employ magnitude. It is Trust-validity

the final words of the court's delivsufficient if it be -indefiniteness. done so that anyone

erance in Carnegie Trust Co. v. of reasonable discretion and judg- Security L. Ins. Co. 111 Va. 1, 31 ment could take the property and

L.R.A.(N.S.) 1186, 68 S. E. 412, 21

Ann. Cas. 1287: “As was said in manage it in a reasonably faithful manner. The action of the testator Brightman v. Bates, 175 Mass. 105, in thus reposing so large a trust in 55 N. E. 809, the question before us two employees who had been faith is not whether or not it would be ful to him through many years may possible to carry out the contract in

a way which would have made the prejudice of the interests of the corcontract bad if specified in it, but poration or its stockholders in this whether it was impossible to carry instance, the cestuis que trustent], out the contract in a way which a court of equity is always open to might lawfully have been specified give such relief as the nature of the in advance. If in the future the case may require." trustees are guilty of a breach of The decree of the Circuit Court is trust, or do any unlawful act to the affirmed.


Validity and effect of provisions in will to control voting power of corporate


This annotation is supplemental to In Canda v. Canda (1921)

N. J. the annotation in 9 A.L.R. 1242, 13 A.L.R. 1029, 112 Atl. 727, where the earlier cases are collected. while the court, in affirming for a

It is held in the reported case different reason the decree advised by (RE PITTOCK, ante, 218) that there is an advisory master, did not pass upon no illegality in provisions of the will the question under annotation, it may of a majority stockholder of a news be noted that the advisory master, in paper corporation, bequeathing his his opinion in (1920) – N. J. — 113 stock to trustees for a period of years, Atl. 503, observed, where a testator during which period it should be held owned one half of the stock of the corintact and none of it sold, and further poration in question: "After all, the providing: "I direct that my trustees trusteeship of the stock in the hands shall vote said stock in favor of them of the executors and trustees amounts selves as directors of said corporation, to a voting trust, which would be iland it is my desire and I request". legal under Warren v. Pim (1904) 66 that a certain person, who was one of N. J. Eq. 353, 59 Atl. 773, for although said trustees, “shall be elected 'man the purpose of the trust may be proper ager" of said newspaper "and shall be (General Invest. Co. Bethlehem retained as such," and that another Steel Corp. (1917) 87 N. J. Eq. 234, at named person “shall be retained as p. 242, 100 Atl. 347; Frost v. Carse managing editor of the" said news

(1919) 91 N. J. Eq. 124, 108 Atl. 642, paper "until he shall become in opinion of the court of errors and capacitated or until he may voluntari- appeals), the duration of the trust is

so unlimited as to render it invalid. I ly resign.” The court considers the

say that this trust, so far as it words "desire" and "request" as

concerns the stock of the Chrome Steel merely precatory or advisory, but not

Works, is no more than a voting trust; mandatory, and seems to consider

for while it is true that the executors that, if mandatory, the provision was

and trustees have power to dispose of not thereby illegal.

the stock, still it is not contemplated Since the earlier annotation, the by the parties that they should dispose reported case (RE PITTOCK) is, with a of it, and the beneficiaries are, in the single exception, the only case on the meantime, receiving the income. subject which has been found.

B. B. B.


(- Cal. -, 194 Pac. 5.)


SARAH E, WALKER et al., Appts.,

V. J. GAMBLE CARSON, Exr., etc., of Alpha 0. Carson, Deceased, et al.,


California Supreme Court (Dept. No. 1)- December 4, 1920.


(- Cal. 194 Pac. 5.) Will — bequest secured by fraud - validity.

1. A bequest in favor of a man who, although married, induces testatrix to enter into a marriage with him, believing him to be single, and who is deceived as to the true state until her death, is void.

[See note on this question beginning on page 247.] undue influence deceit as to re court in refusing leave to file an lation of husband and wife.

amended petition must be reasonable. 2. Undue influence sufficient to set Pleading - allowance of amendment. aside a will is not effected by deceiv 8. The amendment of pleadings to ing testatrix into the belief that the

accord with the plain facts should be relation of husband and wife exist

freely allowed unless good reasons to ed between herself and the legatee the contrary appear. through a marriage which the lega

[See 21 R. C. L. 572-574.] tee was incompetent to contract be

Evidence statements of testatrix cause he had another wife living.

admissibility. [See 28 R. C. L. 139.]

9. Upon the question of fraud in in- fraud effect on will as a whole.

ducing a bequest in favor of one who 3. The entire will is not avoided by induced testatrix to marry him by fraud on the part of a legatee induc

false representations that he ing a legacy in his favor, if the provi

single, evidence is admissible of statesions affected by the fraud may be ments by her not in his presence inseparated from the others.

dicating her belief that the marriage [See 28 R. C. L. 139.]

was valid. Appeal effect of evidence will See 28 R. C. L. 151.] contest.

declarations showing mental state. 4. Upon review of a nonsuit in a 10. Whenever the intention, feeling, will contest, the evidence of contest belief, or other mental state of a perants must be given its utmost effect.

son at a particular time is material to Trial jury — will as result of fraud. the issue under trial, evidence of such

5. The jury must determine wheth person's declarations at the time, iner or not bequest by a woman in dicative of his then mental state, is favor of a man who induced her to admissible in evidence, whether made marry him under the belief that he in the presence of the adverse party was single, although he had a wife liv to the action or not. ing, was the result of the fraud.

[See 10 R. C. L. 946.] [See 28 R. C. L. 405.]

statements as to matrimonial ex. Evidence - validity of will suffi periences. ciency.

11. Upon the question whether or 6. Direct evidence that a bequest in not a woman was deceived into marryfavor of testatrix's husband, who had ing a married man, evidence as to induced her to marry him by the false statements made by him to her as to representation that he was single, was his matrimonial experiences is admisinduced by her belief that he was her sible. legal husband, is not necessary.

Witness examination of man as to [See 28 R. C. L. 142, 143.]

previous marriages. Trial refusal of leave to file amend 12. Upon the question whether or ed petition — reasonableness.

not a

testatrix was deceived into 7. The discretion exercised by the marrying a married man, he may be

examined as to his previous mar admissible that shortly after the marriages.

riage she transferred her bank acEvidence transferring bank account

count into their joint names. into joint names.

Will - mistake effect. 13. Upon the question whether or 14. Mere mistake by testatrix in benot a bequest in favor of one who in lieving that the man she married was duced a marriage with testatrix by free to marry her will not vitiate a fraud was based on the belief that he bequest in his favor. was her lawful husband, evidence is [See 28 R. C. L. 142.]

APPEAL by contestants from a judgment of nonsuit of the Superior Court for Los Angeles County (Monroe, J.) in a proceeding to contest the will of Alpha 0. Carson, deceased. Reversed.

The facts are stated in the opinion of the court.

Messrs. Ford & Bodkin, for appel Trower v. San Francisco, 157 Cal. lants:

762, 109 Pac. 617. Carson was guilty of such fraud and Notwithstanding the terminology undue influence as would warrant a used by the contestants in the draftrevoking of the probate of the will in ing of their contests, their action is question.

based solely upon circumstances Kennell v. Abbott, 4 Ves. Jr. 802, 31 which, if true, constitute fraud, and Eng. Reprint, 416, 4 Revised Rep. 351, not undue influence. 25 Eng. Rul. Cas. 480; Wilkinson v. Re Ricks, 160 Cal. 467, 117 Pac. 539; Joughin, L. R. 2 Eq. 319, 35 L. J. Ch. Moore v. Heineke, 119 Ala. 627, 24 So. N. S. 634, 12 Jur. N. S. 330, 14 L. T. 374. N. S. 394.

The theory of contestants that a will The state of mind of a person exe may be set aside merely because of a cuting a will is always a matter to be mistaken belief upon the part of the considered by a jury when the due deceased that her marriage to Carson execution of the will is under attack. was valid cannot be sustained.

Re Snowball, 157 Cal. 308, 107 Pac. Moore v. Heineke, supra; Re Don598; Re Arnold, 147 Cal. 594, 82 Pac. nely, 68 Iowa, 126, 26 N. W. 23; 252; Re Thomas, 155 Cal. 488, 101 Pac. Schouler, Wills, $ 224; Smith v. Diggs, 798.

128 Md. 394, 97 Atl. 712; Re Dries, 69 Both causes of action state a cause N. J. Eq. 475, 55 Atl. 814; Taylor v. of action-one for fraud and the other Higgs, 202 N. Y. 65, 95 N. E. 30; Rishfor undue influence.

ton v. Cobb, 5 Myl. & C. 145, 41 Eng. Re Olson, 19 Cal. App. 386, 126 Pac. Reprint, 326, 9 Sim. 615, 59 Eng. Re171.

print, 495, 9 L. J. Ch. N. S. 110, 4 Jur. Testatrix's statements, made prior to 261. the execution of the will, and being The court did not err in excluding closely connected therewith, consti evidence of statements made by J. tute a part of the res gestæ.

Gamble Carson or by the testatrix. People v. Wong Ark, 96 Cal. 127, 30 Re Dolbeer, 149 Cal. 227, 86 Pac. Pac. 1115; Carswell v. State, 10 Ga. 695, 9 Ann. Cas. 795; Re Lavinburg, App. 30, 72 S. E. 602; Lyles v. State, 161 Cal. 536, 119 Pac. 915; Re De 130 Ga. 294, 60 S. E. 578; Hall v. State, Laveaga, 165 Cal. 607, 133 Pac. 307; 48 Ga. 607; People v. Vernon, 35 Cal. Re Kaufman, 117 Cal. 288, 59 Am. St. 51, 95 Am. Dec. 49.

Rep. 179, 49 Pac. 192; Re Gregory, 133 It was material for contestants to Cal. 131, 65 Pac. 315; Re Calkins, 112 show the additional confidential rela Cal. 296, 44 Pac. 577; Re Arnold, 147 tionship existing between Carson and Cal. 583, 82 Pac. 252; Throckmorton v. the testatrix.

Holt, 180 U. S. 552, 45 L. ed. 663, 21 Yordi v. Yordi, 6 Cal. App. 20, 91 Sup. Ct. Rep. 474; Gibson v. Gibson, Pac. 348.

24 Mo. 227; Re Ricks, 160 Cal. 450, 117 Messrs. Horace S. Wilson and LeRoy Pac. 532; Re Purcell, 164 Cal. 300, 128 M. Edwards, for respondents:

Pac. 932. The granting or denial of the mo Contestants are not entitled to a tion to file an amended contest was reversal by reason of the rulings of entirely within the discretion of the the trial court upon certain questions trial court.

purporting to call for conversations

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