The record-union., 1898-06-13

deavors to retain in herself the right by
| will, and not '.in the creation" of the
trust estate, to name the person upon
whom the property shall devolve on the
termination of the trust.
| For a second reason / think her effort
and intention in this particular, trans
cends the power which the law gives
her in the premises.
Section S57 of the Civil Code reads
Express trusts may be created for any
of the following purposes:
| Subdivision 3. To receive the rents and
profits of real property, and pay them
to or apply them to the use of any per-
son, whether ascertained at the time CT
the creation of the trust or not fer
himself or for his family, during the
life of such person, or for any shorter
term" etc.
But the grantor in the trust deed uE-
| der consideration, and by the clause
last quoted, creates trust for the col
lection of the rents and profits of real
property, the same to be paid to her
during her life and, on her death, to be
paid to her heirs, or to some person or
persons whom the grantor may desig-
nate in her will. This, in the opinion
of the court, is a violation Of the power
and authority conferred upon a settler
of an express trust by the section Of
the code just quoted. For this reason,
and for the reason last stated, I am
| OF the opinion that the concluding
clause Of the first sentence, and the sec
ond sentence of the habendum clause
in said deed of trust must be held in
operative and nugatory.
For the purposes of fully understand
| y;rr nc Of
grantor in and over the property which
was the subject of this trust deed, let
US determine in whom the title vested
after the execution Of said deed of
| trust.
F1rst-It will not be questioned that,
by virtue Of her fathers will, Eda M.
| Krigbaum was the owner of an undi-
vided one-half interest in said prop
| erty, subject to the jurisdiction Of the
probate court.
| Second-The deed of trust vested in
Peter J. Huelsman during his life, the
legal title which the grantor therein
owned at the date of the execution of
said deed, subject to the trust that ne
would pay to the grantor the rents
and profits of the land, so long as she
lived. &C. c., Sec. S57, Subd. 81
1
said deed, there was reserved to the
grantor reversionary estate, condi-
toned upon the death of the grantee.
Such an estate is authorized and recog-
nized by Sec. 767 of the Civil Code.
In addition to this contractual rever-
sion remaining in Eda NJ Krigbaum,
as the grantor, and under the terms
Of said deed of trust, the law recognizes
as remaining in her that estate which
remains in every grantor after the exc
cution of such a conveyance as was
made by her to her brother as will
appear from the following sections of
the Civil Code. Section 76S reads as
follows: "a reversion is the residue
of an estate left by operation of law
| in the grantor or his successors, or in
| the successors Of a teStator commenc
/ ing in possession on the determine ton
of a particular estate granted or de-
vised."
! Section S64 provides as follows: Not
withstanding anything contained in the
/ last section, the author of a trust may,
in its creation, prescribe to whom the
real property to which the trust relates
shall belong in the event Of the failure
or termination of the trust and may
transfer or devise such property, SUBJ
ject to the execution Of the trust And
Section S65 provides: THE grantee or
devisee of real property subject to a
trust acquires a legal estate in the
property. as against all persons except
the trustees and those lawfully claim
ing under them
Having failed to lawfully prescribe,
in the creation of the trust, to whom
said property shall belong on the ter
mination or failure of said trust the
property will, under the sections of the
code just quoted, and on such termina-
ton or failure of the trust, revert 10
the grantor
Fourth - Eda NJ Krigbaum is not
only the grantor in the aforesaid deed
of trust but also the beneficiary there
under, to the extent that she is to re-
ceive the rents, issues and profits of
the trust property during the existence
of said trust
Having determined the condition of
the title to the property described in
said deed of trust Immediately succeed
ing the execution of such deed. and
also further determined that some es-
tate still remained in said Eda M.
krigbaum, it now becomes necessary
to ascertain what power she had to
dispose Of or transfer the same.
The defendants contend that Eda M.
krigbaum, after the execution and de-
livery of said deed of trust. had no
transferable interest in the lands in
question, and cite, in support Of this
contention, Section S63 Of the Civil
Code, which provides as follows: "Ex-
cept as hereinafter otherwise provided
every express trust in real property
valid as such in it's creation, vests the
whole estate in the trustees, subject
only to the execution of the trust The
beneficiaries take no estate or interest
in the property, but may enforce the
performance Of the trust"
The Supreme Court Of this State. in
the late case of Fatjo vs. Swasey. III
Cal, 62S passed upon this section OF
the code. In that case one Bascom
devised his entire estate to two trus-
tees IN trust to sell the property when
ever they should deem it best so to do
ana to invest one-fifth of the proceeds
or such sale, and pay the income there
from to testator's daughter, Mrs. Swa-
sey, until her death. and then to vest
In her children in fee The trustees
failed to sell the property, and were
removed, and the plaintiff in that case
was appointed in their stead Mrs
Swasey's children, being all of age. con-
Veyed all interest in the property to
their mother, who thereupon mortgaged
the same to one Tennyson This mort
gage was foreclosed, and the property
sold to the defendant q w Cu-ocax-