Daily capital journal. (Salem, Oregon) 1903-1919, 1911-04-12
WinsIOw W Rutherford,
County,

W. c. Winslow, administrator of
the estate of James Edsal Ruther-
ford, deceased, respondent, V. W.. A.
Rutherford, appellant Appeal from
the circuit court for Marion county
The Hon. Geo. H. Burnett, judge.
Argued and submitted March %,
1911. w. c. Winslow, in pro per.
John McNary land c. l.. McNary, on
brief) for respondent. VIM. P. Lord,
and I. H. VanWinkle, for appellant.
Mcbride, ]. Modified.
In the year 1905 T. W. Rutherford
made and executed a deed of the fol-
lowing purport: This indenture
wltnesseth: THAT l, T. w. Ruther-
ford, of Salem, Oregon, for and in
consideration of the sum of one dol
lar to me In hand paid, the receipt
whereof is hereby acknowledged,
have bargained and sold and by these
presents do bargain, sell and convey
unto W. A. Rutherford as trustee for
my son, James Edsall Rutherford,
the following described real prop
erty, to-wit: Also all prom
issory note held by me at this time,
and all other personal property of
every nature, kind and description
which I now own or possess. To
have and to hold the said above de-
scrlbed real and personal property,
together with the appurtenances Of
said real property, unto the said W.
A. Rutherford in trust for the use
and benefit Of my said son James Ed
sail Rutherford until my said son
shall attain the age of 35 years. at
which time the trust hereby created
shall cease, and all property hereby
conveyed shall vest absolutely in,
and be the property of my said son,
James Edsall Rutherford"
The grantor died shortly after the
execution of this conveyance. In
August, 1908, james Edsall Ruther-
ford, the cestui que trust, began a
suit in equity against his trustee, al
leging that he had secured large
sums Of money for which he had
failed to account, and praying for an
accounting and that he be let into
possession Of the trust property. Be-
fore the cause was at issue plaintiff
died, and w. c. Winslow, his admin
Istrator, being substituted for him,
filed an amended complaint to which
defendant answered, setting up,
among other matters, that James Ed
sail Rutherford, at the time the deed
was executed, was about 19 years
old; that his father was a widower
with no other child living; that, up
TO the time Of the execution of the
deed, James Edsall Rutherford had
shown himself unable to take care Of
money or property and had given evil
dence Of being a spendthrift; that
T. W, Rutherford knew that the
property would be wasted II he con-
veyed 1t directly to his son, giving
him control and possession thereof,
so made the conveyance to defendant
with the intent that defendant should
hold and manage the same for the
benefit of James until he should
reach the age of 35 years, believing
that he then would have acquired
SUFFICIENT business experience to take
possession and management of the
property. Defendant alleges that he
took possession of the property, cared
for It; collected interest, rents and
profits accruing to the trust estate;
paid taxes, expenses and repairs; ac-
lively engaged in the duties of the
trust, and supplied James with all
the funds necessary for his support,
education and pleasure, according to
the intention of the grantor in the
trust deed. 1t is further claimed that,
by the death of James before he
reached the age of So, the trust Great
ed by the deed ceased and deter
mined, and that the defendant was
entitled to hold the property for the
heirs of the grantor Plaintiff had a
decree in the court below and defen-
dant appeals.
Mcbride, j.: The industry of
counsel in this case has brought to
our notice a mass of decisions bear
ing upon the construction of deeds
OF this character, where the Ian
guage Of the conveyance itself is