The San Francisco call., 1905-04-26
OPPOSING COUNSEL DISAGREE.

Garoutte then took up the independ-
ent propositions put forward by Grant
and by Deimas at the former argu-
ment. He laid considerable stress up
on the fact that Grant and Delmas
differed from each other as to the
grounds upon which the trust should
be sustained Delmas had in the pre-
liminary argument, on April Z, claimed
that the trust was valid on two
grounds, as trust to pay a portion of
the rents and profits to the adopted
son, Jack" Clunie, and to accumu-
late" the balance for his be.llut until
he reached the age of twenty-five
years. Upon the second argument. on
April IA, Delmas retracted his former
contention and said that his associate
Judge Grant, had in the interim fur
nished him with a plausible argu-
ment to the effect that the surplus
income was not a trust for accumula-
ton, but was to be used to manage and
improve the Clunie building. This re-
traction of Delmas involved two
significant aspects, said Garoutte. 1t
showed that the other side had no
certain ground upon which to sustain
the trust, and also illustrated the cor
rectness of the argument made by his
colleague Lyons, that the trust scheme
of Thomas j. Clunie was one forbidden
by the law.
Garoutte then proceeded to enlarge
upon this latter point and illustrated,
in various ways, the fact that by the
terms of the trust the trustees could
handle the Clunie building as they
pleased until the adopted son reached
the age of twenty-five years, and
argued that If such an arbitrary dis
cretion were allowed by the law the
logic of it would sanction a like un-
fr-ia fa6 fnp min afx mi NO
years. No one could successfully con-
tend, the attorney emphasized that
property could be tied up for such an
indefinite time.
MUST BE IN EXPRESS TERMS.
That there is no duty of any kind
imposed upon the trustees, but that
everything was left to their discretion,
was gone into at length. Garoutte
cited Supreme Court cases to the point
that there can be no valid trust un-
less the directions to the trustee in
express terms are imperative and SO
set forth that court could enforce
them In conclusion Judge Garoutte
argued that there was no direction to
pay or to apply any definite part of
the income of the Clurlie building for
the adopted son and that the court had
already adjudged that other property
in the estate was given for the pur-
pose of his support The result was
that the whole trust was void, as op-
posing counsel admitted that there was
no attempted trust to accumulate"
the income for the adopted son.
At the conclusion Of Judge Ga
routes argument there was consider
able discussion between attorneys
Lyons and Delmas as to who should
have the right of closing the argu-
ment 1t was finally agreed that when
Ex-Governor Budd should finish his
argument, Judge Grant and Delmas
should answer him for the alleged
trustees, and that Attorney Timothy
j. Lyons should be entitled to close
the argument in the case on behalf of
the brother Andrew ]. Clunie.
Should Judge Coffey declare the
trust void the adopted son will never
theless get a half interest in the
Clunie building, as he and the brother
are residuary legatees under the will
and as such are entitled under the
law to take whatever property is not
validly disposed Of