Berghauser v. Blanckenburg

Foote, C. — This action was brought by the plaintiff to recover a certain sum of money from the defendants, which they had received for her, and which they refused to pay over, claiming, — 1. That it was due them for commissions as trustees of her husband’s will; 2. That if their demand in this respect was not just, they were entitled to it under a contract with her; and 3. If not so entitled, that it was due and payable to them on a quantum meruit, for services performed for her, at her instance.

In a cause lately adjudicated in Department One of this court, entitled Blanckenburg v. Jordan, ante, p. 171, which was to construe the trust in the will of the plaintiff’s husband, by virtue of which the first contention of the defendants in this action is here sought to be main[318]tained, it was said: “ John Berghauser and Margarethe Berghauser were husband and wife. The wife brought an action against her husband for a divorce, alimony, and a division of community property. Pending the trial, an agreement was made as to the division of property, in case the court should decree a divorce, under which, upon decree being entered, it was adjudged and decreed that the defendant (husband) should convey to the ivife (plaintiff) certain real property in her own right, and a life estate, with remainder to their six children, or their heirs, in an undivided one third of three other parcels of real estate, situate in the city and county of San Francisco, the principal one of which was that known as the Prescott House. These three properties were all improved, and at the time bringing in an aggregate rental of something over nineteen hundred dollars per month. It was agreed and decreed that the husband, who remained an owner, as tenant in common, of the undivided two thirds thereof, should ‘manage the aforesaid property, in which defendant and plaintiff are jointly interested; and all proper expenses on the property, including insurance, taxes, street assessments, repairs, and further litigation, if any, are to 'be borne by plaintiff and defendant in proportion to their respective interests, monthly accounts to be rendered by defendant to plaintiff, as to all the property in which plaintiff and defendant are jointly interested, and monthly payments to be made by defendant to plaintiff, or her agent, of her share of the rents, income, and profits thereof.’ Presumably, deeds were made to conform to the decree, although they are not given in the record. This decree was made in 1873, and thereafter, during the lifetime of John Berghauser, the property was managed as therein provided. In February, 1878, Berghauser died, leaving a will by which he devised his estate to the plaintiffs in this action, in trust, to manage and control the same until the youngest of his children should reach a certain