Kopp v. Gunther

McFarland, J. Thisaction was brought to have it decreed that a certain conveyance of lands by plaintiff to defendant created a mere naked legal trust, and to compel defendant to convey said lands to plaintiff. Defendant interposed a general demurrer to the complaint, which was sustained; and plaintiff declining to amend, final judgment was rendered for defendant. Plaintiff appeals from the judgment.

The conveyance referred to is dated January 23,1891, and is an ordinary grant, bargain, and sale deed, by which, for ’a named consideration of five thousand dollars, the plaintiff conveys to the defendant, in fee-simple, certain lots of land in the city of Eureka. It was duly acknowledged and recorded. At the same time, defendant executed a written instrument, which, after reciting that plaintiff had conveyed said lots to defendant in trust, proceeds as follows: “I hereby accept such trust, and hereby agree to carry out the terms thereof as the same appear in that certain declaration of trust set forth and contained in the last will and testament of the said Kopp, this day made, which said declaration of trust is hereby referred to and made a part hereof.”

On the same day, plaintiff made his will, in which, after providing for the expenses of his last sickness, funeral, etc., he gives all the residue of his estate to one Regine Wagner. The will then proceeds as follows: “ Having this day made, executed, and delivered unto Robert Gunther a deed conveying to him lots one and eight in block thirty-six, and the southwest quarter of block ninety-four, in the city of Eureka, according to [72]the official map of said city, said property being conveyed to him in trust, to be held, managed, encumbered, or disposed of in accordance with certain directions by me given to him, the said Gunther, — now, in order to avoid any uncertainty in relation to said trust, I hereby declare said trust to be as follows, to wit: 1. That said Gunther is to hold and manage said real property from this date henceforth in such manner as he may deem best; and upon my death he is at once to pay, or cause to be paid, from out said trusj; property, the following amounts, to wit, to Catarina Kopp [and five other persons] the sum of one hundred dollars each; 2. To cause to be erected over my grave a tombstone, to cost about $150; 3. Any money the said Gunther shall pay out for said property, either for taxes, insurance, or otherwise, and any and all sums of money he may advance or loan to me between this date and the time of my death, are to be considered a preferred charge on said lands; and the said Gunther is to first reimburse himself for such amounts so paid from said trust property; 4. Upon the payment of the foregoing, and such additional sums as the said Gunther may deem a reasonable compensation for his services as such trustee, he, the said Gunther, is to at once convey said property as follows, to wit: Unto Kegine Wagner the said lots one and eight of block thirty-six; and unto Augusta Wagner, the sister of the said Kegine, the said southwest quarter of block ninety-four; 5. Should it be necessary or expedient to sell or encumber said property in order to carry out said trust, said trustee has full power so to do, it being left to his discretion to so act in relation thereto that the diminution in value suffered by said trust property by reason thereof will be borne proportionately by the respective shares of the said Kegine and Augusta Wagner. I here expressly state that the said trust property so conveyed as aforesaid forms no portion of my estate herein by this my last will disposed of, nor is it my wish or desire that said trust property be administered upon in probate.”