The San Francisco call., 1909-06-25
SUTRO HEIRS TO
DIVIDE PIONEERS
GREAT ESTATE
Supreme Court Affirms Judg-
ment Declaring Trust Clause
Is Invalid
Twelve Hundred Acres of Land
in This City to Be Distributed
Among the Contestants

The supreme court yesterday made
possible the distribution of 1900 acres
of land in this city involved in the
Sutro will contest. The decree of the
lower court was affirmed, thus estab-
fishing the contention of four of the
heirs of the pioneer that the trust
clause in the will was invalid
1t IS estimated that the estate is
worth $4,000, 600. The Cliff house ranch
and a part of the San Miguel rancho.
constituting about half of the estate,
were proposed by the will TO constitute
trust for charities, institutions of
learning and science and for premiums
for distinguished scholarships and
scientific discovery and invention.
Charles S. Wheeler and Garrett w.
McEnerney successfully attacked the
trust clause, and it is said they will
profit to the extent of is per cent of
the amount involved. With the value
of the land involved in the trust fixed
at sS,000,ooo. the fees Of the two at
torneys would amount to s45o.o0o.
Trust Clause Invalid
Adolph sutro died in this city August
g. 1898. His last will, dated May %.
1882. left to his six children 10000
each. and the residue of the estate,
after the 1900 acres had been set
aside for the trust. Because he pro-
posed to establish trust in perpetuity
for purposes not entirely charitable, the
clause was held to be Invalid
October 1. 1898, Clara A. Sutro, Edgar
E. sutro, Kate Nussnan and Rose V.
Morbio, children of the testator,
brought an action against Emma L.
Merritt and w H. r. Adamson, as
trustees under the will, and Emma l..
Merritt. George w. Merritt, her hus-
bsn,a. ard Charles ~. sutto SpdiviauaI'y
The complaint alleged that the plain
tiffs were owners in fee of an undivided
two-thirds interest In the real property
in controversy. The prayer of the COM
plaint was that the claim of the de-
PENDANTS and all questions as to the
validity of any devise or trust under
Lie WI NOuAu DS 1ltdlly
The action was brought to trial be-
fore the will was admitted to probate.
Plaintiffs Get Judgment
The defendants set up the provisions
of the will in opposition to the com
plant. Judgment was returned for
plaintiffs. declaring them the owners in
fee of two thirds interest in the prop
erty and that the trust attempted to be
created by the will was void because
as the conclusions of law declare, the
fund was not intended wholly for
charitable purposes, but was intended
for purposes partly charitable and
partly other than charitable, and that
the purposes for which it was intended
are vague and uncertain and can not be
made certain
No appeal was ever taken from this
judgment, which was entered June 10,
1899. and it has become final.
May %. 1908. the persons who were
the plaintiffs filed petition for partial
distribution of the estate, including the
part devoted by the will to the trust.
The decree was made in accordance
with the prayer of the petitioners, and
the decision was based on the judg-
ment in the trial. as well as treating
the question of validity as not already
having been decided.
Appeals Are Taken
Appeals were taken from the portion
of the decree of partial distribution dis
posing of the property which was COW
cred in the trust clause. and also from
an order denying the appellants mo-
tion for a new trial.
After citing many authorities, the
supreme court holds that the Sutro
trust clause was not strictly charitable,
as required by the constitution in
trust in perpetnity.
The decision was written by Justice
Shaw and concurred in by Justices
Melvin, Henshaw, Angellotti and Sloss,
the last having written a concurring
opinion in which he expressed no
opinion upon the validity of the trust
as an original question.
Morrison. Cope & Brobeck. II. w.
Bradley, j. c. McKinstry and L. S.
Webb figured in the case as attorneys