Loescher v. Whipple

McKENZIE, J., pro tem.

For two years prior to the 5th of September, 1924, Katie Loescher had in her custody a grandson nine years of age, named Jack Loescher. It is not clear why the boy was living with his grandmother instead of with his father, E. F. Loescher. The boy was somewhat mentally deficient, and the grandmother appears to have been very solicitous of his future welfare; and having in mind that he might never be capable of providing for himself, she conceived the idea of giving the boy, through the medium of a trustee, a productive tract of land in Fresno County, consisting of about forty acres. This plan of making provision for her unfortunate grandchild had

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been in Mrs. Loescher’s mind for some time, and on the fifth day of September, 1924, she caused to be executed a deed, which conveyed the real property involved in this action to her son, E. P. Loescher, who is the father of Jack Loescher. On the same day and as part of the same transaction, but by separate instrument, a declaration of trust relating to this property was executed by E. P. Loescher as trustee; and Jack Loescher was named therein as beneficiary. The trust agreement was evidently prepared by one who had knowledge of such matters, and it fully provides for the management of the property by the trustee and the payment of the proceeds to the beneficiary. There is only one feature of this trust agreement which calls for special attention, and this is occasioned by appellant’s contention that the trust is invalid for the reason, as stated by appellant, “It is void for uncertainty as to the subject and purpose of the trust.” Appellant’s contention that the trust agreement is invalid was asserted by way of demurrer and by objecting to its introduction in evidence. The trial court ruled against this contention, and appellant now complains of error in this particular. This issue can be quite appropriately disposed of at this point.

That portion of the trust agreement in question reads as follows:

“Said conveyance, to wit, said deed which is hereby referred to and by reference made a part of this Declaration of Trust, is for the purpose of providing for Jack Loescher, the minor child of Trustee E. P. Loescher, and said child being of the age of nine years, said child hereinafter called and referred to as Beneficiary.

“The term of this trust and duration of the same is agreed to be until said Beneficiary shall arrive at the age of twenty-one years, at which time said property remaining in the hands of said Trustee may be conveyed and transferred to said minor child if in the opinion of said Trustee such should be done, said Trustor leaving it entirely in said Trustee with full discretionary power to at said time convey all property remaining under this trust to said Beneficiary, or to continue to use and handle said property. ...”