Floyd v. Forbes

Temple, J. This action was instituted to obtain the construction of a deed of trust made by James Lick to certain trustees, the plaintiffs herein. The deed was executed September 21, 1875, but the trustees were changed, and those now acting were selected in April, 1876.

James Lick died in October, 1876. After his death, the heirs manifested a disposition to contest the validity of the deed. This led to a compromise, the validity of which compromise was tested in a suit brought for that purpose, which was decided in December, 1879. The complaint in this suit was filed in August, 1884. Judgment was entered, answering the various questions propounded by the trustees, and from that judgment this appeal is taken by the board of Regents of the University of California. All the other beneficiaries of the trust seem to be satisfied with the judgment.

The deed conveys the property in trust for the following purposes: “1. To enter into possession of, have, receive, and recover the property and rents and profits thereof (except as herein excepted), and to let and lease (until sale), and to sell, convey, and dispose of the same, [590]and to convert the same into money (except as herein excepted) as rapidly as judicious management will permit, and out of the proceeds to make the payments herein below directed.”

The deed further proceeds to designate various payments to be made by the trustees, and some expenditures. Some of the payments were to be made at once, and in the eighteenth subdivision the trustees are directed, “ after discharging the trusts and making the payments hereinbefore mentioned, in the order hereinbefore set forth (except as herein otherwise directed), to make over and transfer the residue of the proceeds of the property hereby transferred and conveyed, and intended to be in equal proportions to the California Academy of Sciences and the Society of California Pioneers.”

The third subdivision is the one in which the appellant is specially interested, and reads as follows:—

“3. To expend the sum of seven hundred thousand dollars ($700,000) for the purpose of purchasing land, and constructing and putting up on such land, as shall be designated by the party of the first part, a powerful telescope, superior to and more powerful than any telescope ever yet made, with all the machinery appertaining thereto and appropriately connected therewith, or that is necessary or convenient to the most powerful telescope now in use, or suited to one more powerful than any yet constructed; and also a suitable observatory connected therewith. The parties of the second part hereto, and their successors, shall, as soon as said telescope and observatory are constructed, convey the land whereupon the same may be situated, and the telescope and the observatory, and all the machinery and apparatus connected therewith, to the corporation known as the Hegents of the University of California, and if, after the construction of said telescope and observatory, there shall remain of seven hundred thousand dollars in gold coin any surplus, the said parties of the second part shall