The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-08-26

| which shattered all their hopes of none
tary support, The. decision was on ar
appeal from the action of Department in
the case of George G. Whitney ct al.
minors against Josephine FL. Dodge.
The father of Mrs. Dodge was Jones
| Dyer, wealthy Maine lumberman, who
had invested in the bonds of that State
He died in Philadelphia July Is, 1861 and
left will in which he bequeathed in
entail to his daughter Josephine, in trust
for the benefit of granddaughter, Alice
S. Knight, and whatever children might
be born to her, $4,000 worth of State OF
Maine bonds, the will to take effect on the
| death of his wife, Lydia Dyer. Mrs. Dyer
died six years later, and on the following
| August Josephine received the bonds
under the terms of the will.
The will, according to the holdings of
the California Supreme Court, was valid
under the laws OF Pennsylvania, and its
validity was accordingly recognized here.
BY its terms the bonds were to go to the
children of the granddaughter, Alice
knight, at her death, and they were to en-
JOY the interest and dividends until the
youngest became 81 years of age, when the
body of the fund was to be equally divid-
ed between them. Her children were born
after Mrs. Dyer's death. She married
twice, leaving two children, and she died
in February, 1876.
Mrs. Dodge moved to California and, ac-
cordlng to the averments of the complaint,
converted the bonds to her own USE and
suit was brought by the children for the
recovery of them. They were represented
in the Superior Court of this county by T.
M. Osmont, and Joseph Leggett defended
her. Her attorney entered demurrer on
the ground that the provisions of the will
were void under the laws of this State.
The lower court sustained it.
Supreme Justices De Haven and Fitz-
gerald rendered the decision and re-
versed the action of the lower court,
holding that the demurrer should have
been overruled and SO directing. The
main point at issue was strongly brought
out in the following extract from their de-
cision:
1t may be said, generally, that it would not
be within the scope OF just and enlightened
public policy to allow a trustee with trust
funds in his hands, received under will per-
fectly valid in another State to avoid the trust,
appropriate the funds to his own use and
defeat the beneticiaries by the simple device of
coming to this State and bringing the funds
with him. We do not know that these are the
facts in the case at bar; but they are alleged in
the complaint and we are here dealing with
conclusion is that the demurrer should have
been oyerruled
1t was the principle of entail, understood
in legal language by the term s'perpetuity,' -
which Mrs. Dodge fought, and che relied
upon section 715 of the California Civil
Code to maintain her side of the con-
troversy. According to it absolute power
OF alienation cannot be suspended by any
limitation or condition whatever for q
longer period than during the continuance
OF the lives in being at the time of the
creation of the limitation or condition"
that is at the death of the testator.
The court assumed that If the will had
been made in this State it could not have
been enforced, but having been made in
Pennsylvania and involving the obliga-
tons of a trust touching personal prop
erty created there, it held, under gen.
eral rule of law, that the disposition of the
personal property should be governed by
the law of the domicile of the testator and
that mere removal of the trustee to this
State would not make the will void.
Attorney Leggett had contended that
the laws of another State, when in con-
fiict with public policy. ought not to be
recognized, and based his argument on the
ground that the policy of this State was
opposed to perpetuities.
According to the courts definition OF
the term 'perpetuity," taken from Alb
bolts Dictionary, the only difference be-
tween the laws of the two States was one
OF time, that of Pennsylvania allowing the
entailment to extend for a longer period.
and it recognized the policy OF both States
was opposed to perpetuities in the positive
sense of the term. 1t therefore fell back
upon section 946 of the Civil Code.