The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-07-14
A Decision Which May
Affect the Fair Will
Contest.
WHITNEY VS.. DODGE
Against the Suspension of the
Power of Alienation of
Property.
CHILDREN'S LAWYERS TALK.
One Of Their Leading Lines VIII Be
Based on the Tribunals
Action.
CHILDREN's LAWYERS TALK.


prolific of sensations, has had another
chapter of interest added to it by decision
of the Supreme Court which has Just come
to light, and which one or two prominent
| members Of the Bar Association have not
hesltated to say will shatter the trust
clause in the dead millionaire will. The
case in question was entitled Whitney
| versus Dodge, and it was almost parallel
| case to the Fair contest suit in regard to
| the trust. AS in the latter, the possibility
arose OF the suspension of the power of
alienation for longer period than during
the existence of lives in being. The will
In the case of Whitney versus Dodge was
drawn in Pennsylvania and created trust
IN accordance with the laws of that State.
The respondents father at his death left
to her ST., 900 in State bonds of the State
OF Maine, in trust for Alice S. Knight, the
testator's granddaughter, the interest and
dividends on the bonds to be devoted to
the support and education of the said
Alice S. knight until she was 81 years of
age, after which she was to have the inter
est and dividends for the rest of her nat
ural life, and in the event of her death, if
she left issue, her children were to receive
the interest and dividends until the young.
est was u years of age, when the estate
should be divided between the children
1t seems that Mrs. Dodge failed to comply
with the conditions of the trust, hence the
suit. Meantime she had moved to Cali
fornia and the suit had to be tried under
the law of this State. Justice Mcfarland
delivered the opinion of the court, which
was as follows:
From the complaint it appears that one
Jones Dyer, who was a residentl of and domi-
c1led in the State of Pennsylvania, died in the
city OF Philadelphia in said State on the 18th
day OF July, 1860, leaving a last will and tes-
lament. By said will he gave to the respon-
dent herein, who was his daughter to take
effect after the death of his wife, Lydia Dyer,
$4,000 in State bonds of the State of Maine
in trust for certain uses and purposes
The trust was that respondent should devote
the interest and dividends of the bonds to the
support and education of one Alice S. knight,
a granddaughter OF the testator, until she be
Il years old, and afterward said Alice was to
receive said dividends during the period of
her natural life. In case said Alice should die,
leaving lawful issue, then her children should
receive said interest and dividends until the
youngest thereof should be 81 years old, when
the corpus of the fund should be legally d.
vided between such children.
Inc said VIII was duly probated in Pennsyl-
vania. In 1865 the said Lydia Dyer, surviving |
wife OF the deceased, died, and In August, |
said bonds in trust as aforesaid. The said |
Alice 5. Knight was married twice during her |
lifetime and died in February. 1876. leaving |
the two appellants herein her sole and lawful |
issue. The latter were not born until after the |
death of the test ator. The respondent having |
accepted said fund in trust as aforesaid and |
received all the said interest and dividends |
has appropriated and converted said trust |
fund to her own use and now denies and re- |
pudiates said trust and refuses to account to |
appellants for any part thereof.
Under the laws OF Pennsylvania the said pro- |
visions of said will were valid, those laws per
hitting the suspension of the power of aliena-
ton for the period of lives in being and twenty
one years afterward.
The foregoing ale the only material aver
ments of the complaint necessary to be here |
stated, and for the purposes of the demurrer |
they must, of course, be taken as true
Respondent contends that the complaint |
does not state cause of action because the |
provisions of said will upon which appellants
rely were laid under the laws OF California,
and that, therefore, they cannot be here en-
forced.
l. Counsel for appellants has argued with
great learning, ability and ingenuity that the
said provisions of said will would be valid |
under the laws of California if the testator had
been domiciled and the will had been made
here, and If no consideration OF the law OF
comfy or the law of domicile were involved
in the case. 1t is sufficient to say on this
point that the learned counsel has not con-
WINGED us that his position is tenable or that
the said provisions of the will as to the
children Of Alice Knight, born after the death
OF the testa1or, are not within the limitations
OF section 715 of our Civil Code, which pro-
vides that "the absolute power OF alienation
cannot be superseded by any Limitation or
condition whatever for longer period than
Beg at tbe OF ns OF bs
Limitation or condition" tOf course, in the
case OF will the creation of the limitation or
condition" takes place at the death of the tes-
tator) We will assume, therefore, that if the
Will had been made in this State by person
domic1led here it could not have been here en-
forced.
2. But it does not follow that respondent
can escape the allegations of trust touching
personal property created in another State and 7
perfectly valid there by removing into this
state, sWhere such trust, If created here,
would not have been valid.
The decision was handed down on De-
cember % 1894, six days before the death
OF James G. Fair, but it was not published
until the issue of volume los of the Cali
fornia Reports last Wednesday.
The decision caught my eye immedi-
ately,' said well-known attorney yester-
day, and | Immediately got copy of the
talr Will to compare the trust clauses in
both cases. do not believe that in the
history of the California courts decision
mas been rendered which so completely
covered the points in another case as this
decision does in the contest of the will in
regard to the trust. You can see for your
self. Here is copy of the will, but all we
have to do with is the fifteenth section or
clause"
Inc ftteenth clause reads as follows:
F1fteenth-All the rest, residue and remain
Ter OF my estate, property and effects personal
cal ana mixed, whatsoever and wheresoeyer
situate, give, devise and bequeath unto nv
rustees hereinafter named, and to the sur
'lVors OF them, and to their successors in Office
n trust Tor the following uses and purposes
nat Is 10 say: To have and to hold the same in
rust during the lives of my daughters, Theresa
,. Oeirlchs and Virginia Fair, and of my SON
jnarles H. Fair, and during the lives of the
survivor OF them, and upon the death of said
survivor TO transfer and convey to the children
,r descendants of my said daughter, Theresa.
he one-fourth part of said trust property and
'state and to the children or descendants of
NY said daughter, Virginia, the one-fourth
part OF my said trust property and estate, and
ne remaining one-half of said trust property
ina estate to transfer and convey in equal
hares to my brothers and sisters and to the
,nlidren OF any deceased brother
'r sister by right of repres enta-
ion., (The language of this clause
s taken from the Civil Code of the State of
california. section 1885, subdivision 8. as II
low exists, and shall bear the same construc-
ION Us SAID SUBDIVISION of said section, subject
his Will.
In case either of my daughters die leaving no
'nliqren or descendants the one-quarter part
y the sa1d trust property and estate herein
llrected to be transferred and conveyed to her
'hlioren or defendants shall be transferred
lnd conveyed to the children or descendants ]
u my other daughter, and if there be none the
anne shall be transferred and conveyed to my !