Eakle v. Ingram

SMITH, C.

The plaintiffs are the children and sole heirs of Mrs. E. A. Hammack, who died December 26, 1902, intestate. The plaintiff Eakle is the grantee and party of the sec*

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ond part, and the plaintiff Henry Hammack the party of the third part, in a deed of conveyance executed by Mrs. Ham-mack, as party of the first part, June 26, 1899, conveying to the grantee “and to her successors in trust” the land described in the complaint, “to have and to hold” the same, etc., “and to pay the rents, issues, and profits thereof to the said party of the first part during her natural life; and after the decease of the said party of the first part, to pay the rents, issues, and profits thereof to the said party of the third part during his natural life.” The deed also contains a clause authorizing the parties of the second and third parts to sell the premises upon certain contingencies specified, but this is omitted from our statement as immaterial. The defendant is a trustee appointed by the court January 27, 1903, upon the resignation of Mrs. Eakle. The suit was brought for the dissolution of the trust, and the discharge of the trustee. A general demurrer to the complaint was interposed and overruled, and judgment entered for the plaintiff. The defendant appeals from the judgment.

The judgment, we think, is right. The plaintiffs are the only persons beneficially interested in the property (Civ. Code, sec. 866;

Morffew

v.

San Francisco etc. R. R. Co.,

107 Cal. 595; 1 Perry on Trusts, sec. 320;

Young

v.

Bradley,

101 U. S. 787), and in such cases the rule is as stated by Mr. Underhill: “If there is only one beneficiary, or if there are several and they are all of one mind, and he or they are not under aüy disability, the specific performance of the trust may be arrested, and the trust modified or extinguished.” (Underhill on Trusts and Trustees, pp. 13, 370-375, and cases cited. See, also, 2 Perry on Trusts, sec. 920; 1 Perry on Trusts, sec. 104;.Civ. Code, secs. 2252, 2258; Lewin on Trusts, 684, 685; Hill on Trustees, 278; Tiffany & Bullard on Law of Trusts and Trustees, 815, 816.) The court below was therefore empowered to decree a dissolution of the trust, and a release of the trust property by the trustees; which is the effect of the judgment. There are indeed eases (as is said in the note to the place first cited), where though ‘1 all the beneficiaries consent, [yet] the court may for good equitable reasons refuse to discharge a trust”;—as, for example, in the case of “infants, lunatics, and married persons restrained from anticipation”