Daugherty v. Dixon

COOPER, C.

This is an appeal from that part of the decree of distribution which awards to Truman Tuttle Dixon the residue of the estate of deceased. The court construed the portion of the will which attempted to create a trust to convey as void and distributed the estate to the heir at law.

The portion of the will in question here is as follows; “Thirdly.—I hereby give, devise, and bequeath all the rest and residue of my estate, real and personal, to John W. Rowling and G. A. Daugherty, or the survivor of them, as trustee, in trust for my grandchild, Truman Tuttle Dixon,

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the only surviving child of my deceased son John F. Dixon. The same to be held, managed, and controlled by said trustees, or the survivor of them, for the use and benefit of my said grandchild, Truman Tuttle Dixon, until he shall arrive at the age of thirty years, and to pay over to him or expend for him the income of such part thereof as said trustees or the survivor of them, shall deem necessary or suitable for the education and maintenance of said grandchild until he shall arrive at the age of twenty-one years, and thereafter and until he shall arrive at the age of thirty years to pay over to him the income of said trust property. And when said Truman Tuttle Dixon shall arrive at the age of thirty years, then I direct said trustees or the survivor of them, to pay over and transfer to said Truman Tuttle Dixon the said trust estate, together with the income and accumulations thereof, if any, less the necessary expenses of said trust. And I hereby direct, authorize, and empower said trustees, or the survivor of them, to sell and dispose of all the real property owned by me in the county of San Luis Obispo (providing I have not done so before my death, or my executors have not made such sale), whenever in their judgment a good sale can be made of said property, or whenever in their judgment it would be for the best interests of said trust estate to sell the same; and I hereby direct my said trustees to invest the proceeds of such sale in other real property near to or in Salinas City, California, or loan the same on good mortgage security, as in their judgment shall appear to be for the best interest of said trust estate. But in the event of the death of my said grandchild, Truman Tuttle Dixon, before he reaches the age of thirty years without heirs of his body then alive, then and in such event I direct my said trustees to pay over and transfer in fee simple all of said trust estate to my brother and four sisters, viz.: J. E. Cooksey of Louis County, Missouri, Sarah Ellen Bevans of Louis County, Missouri, Eliza A. Johnson of Salinas City, California, Mary E. Jamison of Santa Barbara County, California, and Alice Stephens of Santa Clara County, California, in equal shares, less the necessary expenses of said trust.”