The record-union., 1898-06-13
OF INTEREST TO LITIGANTS.
SOME IMPORTANT LAW POINTS
DETERMINED.
Superior Judge Hughes Decision
In the Smith-Krigbaum
Case.

Reference was made on Saturday to
the decision rendered by Judge Hughes
In the case of Mrs. E. j. Smith against
Eda M. Krigbaum and others, involv-
ing a portion of the estate of the late
p. j, Huelsman AS the case embraces
some interesting points, the decision is
herewith given in full:
In the Superior Court Of the State Of
California, in and for the county of Sac
ramento, Mrs. E. j. Smith VS.. Eda M.
Krigbaum, w. T. Krigbaum, Peter j..
Huelsman, Marcus Graf, ct al.
This action is prosecuted to foreclose
a mortgage made by Eda NJ Krigbaum
and w. t. Krigbaum to the plaintiff TO
secure the payment of a promlssory
note for $500 both which note and
mortgage bear date of January 4, 1871
The defendant, Marcus Graf, holds a
second mortgage on the same property
covered by the mortgage Of the PLAIN
tiff The defendant Peter j. HuelSman,
holds a deed of trust of the mortgaged
premises executed by the defendant,
Eda NJ. Krigbaum, on the 14th day CT
March, 1895, and prior to the execution
and delivery of the mortgage to the
plaintiff. w. t. Krigbaum is the hus-
band of the defendant, Eda Nj. krlg-
baum, and has no interest in the prop
erty, but joined in the execution of the
mortgage to plaintiff on account Of the
relation which he bears to the defend
ant, Eda NJ. Krigbaum. The defendant,
Peter j. Huelsman, has also filed
croSS-complalnt wherein he prayS for
decree of the court Quieting his title to
all the premises involved in the htiga-
tion.
1t appears that Charles H. Huelsman,
who was the father of the defendants,
Peter J. Huelsman and Eda NJ. Krig
baum, died on or about the Sth day of
January. 1880, being at the time Of his
death the owner of the real property
described in the plaintiffs mortgage to-
gether with considerable personal prop
erty. He left a last will and testament
by the terms of which he bequeathed to
his daughter, Mary Newman, the sum
of So, and to his wife a certain specific
piece of real property situated in this
county, and all of the rest, residue and
remainder of his estate he bequeathed
in equal shares to his son, Peter j.
Huelsman, and his daughter, Eda NJ.
Krigbaum. The will of said Charles II.
Huelsman was duly admitted TO pro-
bate in the Superior Court Of this coun-
ty and letters testamentary issued to
said Peter J. Huelsman thereon. The
probate of said estate is still pending
and undetermined.
The deed of trust made by the de-
fendant, Eda NJ. Krigbaum, to Peter
J. Huelsman above referred to was
dated March IA, 1895, and conveyed al
of her interest in the estate Of her
father Qncluding the property covered
by plaintiffs mortgage) during the
term of his natural life and in trust,
nevertheless, to enter into and take
possession of all the said property, to
manage and conduct the same IN all
respects as the situation of the prop
erty may justify or demand, with a
power of sale if, in his discretion II
should be for the best interest Of The
grantor so to do, and to collect the
rents. issues and profits thereof, and
to pay over the same to the grantor.
The concluding or habendum clause
of said trust conveyance is in the fol-
lowing language: AT the death Of my
said trustee, said trust is hereby de-
clared to be at an end, and said trust
property shall thereupon revert and be
the property of myself, and IN the
event of my death before that date TO
go to my heirs, legatees and devisees.
In the event of my death before the
death of my said trustee, the rents, IS
sues, profits and income of said trust
property to be disposed of as l may
direct by will, or in the absence OF any
will to my heirs at law.
The next instrument affecting the
title TO said property was the mortgage
executed by the defendants, Krigbaum
20 ra1a
mortgage is in the usual form in use
in this county and contains clause hy-
pothecating the rents, issues and profits
of the mortgaged premises to secure
the payment of the promissory note dc
scribed in said mortgage.
On the 10th day of June, 1897, some
six months subsequent to the execution
Of the mortgage last described, the
defendants. Peter j. Heulsman anc
Eda NJ. Krigbaum, entered into ar
agreement IN writing, which agreemen1
recited that said parties were the deV'
isees and legatees of Charles II. Huels-
man. deceased, land as such have beer
and now are the owners of the follow
ing real estate" Then follows de-
scription of the property described ir
plaintiffs mortgage and in the trus1
deed hereinbefore mentioned. Saic
agreement also contained the recltat1of
that said Peter j. Huelsman has
made permanent improvements upor
said real property and has purchased
personal property for use on said rancl
and paid out and expended money fol
said party OF the second part (Eda NJ
Krigbaum), which, in the aggregate
amounts to one thousand (S1,0OO dol
lars in gold coin and this sum tht
party Of the second part Chat is. Mrs
Krigbaum) admits is now due from he1
to the party of the first part Petel
]. Huelsman), and said sum is hereb!
made and declared TO be lien on saiS
land in favor of the party Of the frs
part.
In consideration therefor. the party
of the first part admits that the part,
of the second part is the full and equa
owner OF one-half of said real estate
and all the improvements upon TIL
same, whether originally on said prem
ises or put there by the party of TIL
first part, and also that the secont
party is the full and equal owner o
all the personal property now upol
said ranch except two horses"
The agreement further recites ad
r.