The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-11-06

of the late Senator Fair whereby the trust
was created. 1t reads as follows:
do hereby nominate and appoint as the ex-
ecutors of this, my will, and as the trustees
| thereby and therein created and declared,
w. S. Goodfellow Of San Francisco, attorney
and counselor at law; james S. Angus OF San
Francisco, now in my employ; Louis G; Bres Sc,
| also of San Francisco, now IN my employ ana
Thomas q. Crothers, my nephew, and | do ex-
| pressly provide that no bona or bonds be at
| any time required of them or any OF them as
such executors and trustees.
| l do hereby authorize and empower my said
executors and trustees, or such OF them as
shall act and their successors in office either
] in their capacity as executors or trustees, 10
sell any property of my estate, real or
| personal, at public private sale, and
with or without notice, they may
determine. and without the order OF any
| court, and to execute good and valid convey
anceS thereof; also TO invest and relnyest tne
proceeds of sales of property, and to purchase
! or acquire other property, or apply the pro
ceeds or sales of property to the improvement
of other property: also to lease property and
| to borrow or lend such sums of money as they
may deem best, and to secure the repayment
OF loans by mortgage or other lien upon or
| transfer of real or personal property; also TO
make compromises and settlements; also to
| maintain and keep in good order and con-
| dition my mausoleum or vault in the Laurel
Hill Cemetery in San Francisco, and for such
! purposes and any other of the purposes de-
clared in this will to use and apply so much
of the trust estate as may be necessary.
1t was in passing upon the almost SINH
lar conditions imposed by the Walkerley
will that the Supreme Court quoted section
! III of the Civil Code, which reads as
| follows:
The suspension of all power to ALLEVIATE the
subject OF a trust, other than power to
exchange it for other property to be held
upon the same trust, or to sell it and relnvest
the proceeds to be held upon the same trust. is
a suspension OF the power OF alienation within
the meaning OF section 7l5.
Commenting upon the section the Su-
preme Court says:
1t would seem as though all need of discus
sion were foreclosed as to the trust under con-
sideration by the plain terms of the code as
above set forth, yet because OF the great value
of the property involved, and the serious con-
sequences which must follow to the interests OF
respondents, it would perhaps be unjust to
leave this consideration without further am
plitication. We will, therefore, discuss, as far
as We have been able to follow them, the prop
ositions made by respondents in support of
this trust.
A perpetuity is any limitation or condition
which may mot which will or musD take
away or suspend the absolute power OF aliena-
ton for period beyond the continuance of
lives in being, The absolute power OF aliena-
ton is equivalent to the power OF conveying
Alienation, section ID. The law against the
suspension OF the power OF alienation
applies to every every kind inn,; Of convey
trusts, whether created by viii or deed
whether providing for remainders or execu-
tory devises, or, as here, merely restraining
years, and then providing for sale with gift
over In short, it covers the entire field OF
estates interests. rights and possibilities"
Chaplin, Suspension OF Alienation, section 2.
Says Perry: "A perpetuity will no more be
tolerated when it is covered by q trust than
when it displays itself undisguised in the
settlement of a legal estate" perry on Trusts,
section 382), and section I'll, Civil Code, is
but an enactment OF this rule.
Every express trust, valid in its creation
vests the whole estate in the trustees. The
benefciaries take no estate or interest in the
property, but may enforce the performance of
the trust. &c. c., S639. If this trust be not
valid in its creation the trustees would take no
estate, but neither would the benefcaries
whose rights are dependent upon the validity
OF the trust. If it be valid then the whole
estate" vests in the trustees. The "whole
estate" as has been pointed out (Emburg VS..
Sheldon, So n. Y, 227), means the whole of
such an estate as is necessary to the perform
ance OF the trust.
In the one under consideration it embraces
the whole legal and equitable estate which the
testator enjoyed, since no less would be SUI
ficient to enable the trustees TO carry out the
purposes: First to apply the income for
twenty-five years Sec. S57, C. c., Subd. 81 and,
second, at the expiration of that time to sell
S57, c. C., Subd. II. The benefciaries herein
then take no estate as such, their interest being
the right to the enforcement of the trust.
But, If we understand the, position of re-
spondents, it is contended that the nephews
/ and nieces take future estate. which future
estate is vested and is alienable, and that,
therefore, it is valid estate, since only. those
future interests are void which by possibility
may unduly suspend the power of alienation.
Following this argument, and for this purpose
! treating the interest Of the benefciaries
future interest estate within
the contemplation of the code &C. c., 716),
1t may be first suggested that all expec-
or contingent with vested right, or entirely
contingent, pass by succession, will and trans
fer like present estates and interests G. c. 500.
But the fact that such interests may pass
does not relieve from the operation OF the rule,
unless there are persons in being who, by COM
bining and conveying all their distinct inter-
ests created by the original grant devise,
can pass an absolute interest in possession.
Conceding that the future interest OF the bene-
ticiaries is vested in the sense in which remain
ders are spoken of vesting, and that the
interest would thus be alienable. it still is not
such an interest as would by transfer carry an
absolute interest in possession. AS is pointed
| out by the court in Vanderpoel vs. Loew, l12
! n. Y, 157, the vesting of an estate involves
absolute alienability only so far as that psrtic-
| u!ar estate is concerned The fact that given
remainder is vested renders it absolutely
cerned, but the absolute fee may at
| the same time be inalienable. Therefore,
! to convey this absolute interest in possession
| the benefciaries would be compelled to unite
! with their conveyance that of the trustees in
| whom the fee is vested. But the trustees can.
not convey until the expiration of twenty-five
/
| that time would contravene the trust and be q
void act &c. c., 500, and so even by this
| method OF progression our path leads to that
barrier OF perpetuity which cannot be sur
| mounted.
1t was the consideration of the foregoing
and similar utterances of the Supreme
Court that finally led Mr. Goodfellow to
the conclusion that his loyalty to the dead
Senator no longer required the existence OF
the trust created by the will.
In the settlement which followed Mr..
Goodfellow's graceful abdication of the
position originally maintained by him
each of the four trustees received, it is un
derstood an amount of money equivalent
to the commissions they would have
earned had the trust been maintained and
all of the requests named in the so-called
''stolen wilP' were paid in full. The lega-
tees concerned were the following-nam
persons:
Theresa A. Oelrichs, a daughter aged 25
years; Herman Oelrichs, her husband, aged 45
years, and Virginia Fair, daughter aged 10
| years. all residing in New York, and Charles L.
Fair, son, aged 81 years, residing in San
| Francisco.
| Mary Anderson, sister; her husband, James
! Anderson, and their four children, residing in
| Ida Grove, Iowa. The children are: Margaret
| Jane Hall, Mary Eliza Upton, William James