The herald., 1896-10-21

may occur in the care and management
of said premises, and interest on any
mortgage that may be placed thereon.
The surplus of said income shall be
his own use and benefit for his services
herein. Said observatory to be located
on what is known as Wilson's peak In
the county of Los Angeles, or some
other suitable site in the mountains of
the Sierra Madre range. to be selected
by the consent and approval of E. f.
Spence.
'Tn case said property, or the pro-
ceeds thereof, shall not be used as here
in stated, the said proceeds Except the
rents as hereinbefore provided) shall re-
vert to and vest in the said grantor or
his legal representatives"
The trust thus created was accepted
by all of the six trustees, and by the
University of Southern California.
On September 10, 1892. Mr.. Spence
died, and prior to his death two of the
trustees, M. NJ. Bovard and H. Sinsa-
baugh had died.
After the death Of Spence the surviv-
ing trustees continued in possession of
and cared for the trust property, await
ing favorable opportunity to sell it to
the best advantage before taking steps
to contract for new lenses and otherwise
carry out the trust
On September I, 1898, the plaintiff
three surviving trustees and the Uni
versity Of Southern California. At that
time the places of the deceased trustees
had not been filled, the trust property
had not been sold, and no definite site
for the location of the observatory had
been selected.
The case was tried in March, 1894,
and the court found, among other
things. that the accomplishment of the
objects set forth in the said trust deed
has become impossible and that said OBJ
jects and purposes have long since been
abandoned, and nothing whatever has
been done toward the execution of the
said trust for more than three years."
1t is upon this finding that the judgment
rests.
we are unable" says the court, ito
find any evidence which, in our opinion,
can be said to justify the finding that
the accomplishment of the objects of
the trust had become impossible. 1t is
true three of the six trustees are dead
but sections 22Ss and 22S9 of the civil
code provide that the trust sur
wives, and the superior court may ap-
point other trusteesThe fact that no
steps had been taken to have the needed
trustees appointed does OF show that
the execution of the trust had become
impossible.
1T also appears the big lenses had
been sold, but only with the consent Of
the trustor. No definite time was fixed
for the sale of the property or the cree
ton of the observatory, and the delay
does not seem to have been unreason-
able.
1t is also true that the observato tory has
not been located on Wilson's peak, but.
assuming that the location cannot b.
there made. it does not follow that a
suitable site cannot be selected on some
OF the adjacent peaks.
1--WE find no evidence either in the rec
ord that the objects and purposes of the
trust have been abandoned Under our
code "a trustee must fulfill the purposes
of the trust as declared at it's creation,
and must follow all the directions of the
trustor given at that time, except as
modified by the consent of all parties
Interested (Sec. 225S, c. c. And as
such trustee he has no power to aban-
don trust, except as declared there
in for he is a general agent for the
trust property and his acts within the
scope of his authority, bind the trust
property to the same extent as the acts
of an agent bind his principal (Sec.
z267, c. C.)"
Various other legal points are touched
upon in the decision, but those quoted
above cover the most important.
The judgment and order are reversed,
and the cause remanded for new trial
From this decision Justice Mcfarland
dissents in lengthy opinion.