Toland v. Toland
Before: Harrison
Synopsis
■Construction of. Will—Suspension of Power of Alienation.—Whenever there are persons in being by whom an absolute interest in possession in land devised by will can be conveyed, the power of alienation is not suspended by its terms; and a provision in a will for the sale of lands “as soon as the leases of rented lands are canceled,” and for a distribution of the proceeds, does not suspend the power of alienation. The tenants could at any time cancel their leases by agreement with the executor, or unite with him in a conveyance of the fee and possession of the land.
Id.—Provision for Sale—Eight not Postponed.—The direction to sell the land as soon as the leases were canceled designates a point of time after which the beneficiaries could enforce a sale, but does not postpone the right to make the sale until the expiration of the terms created by the leases; but it is equivalent to a direction to sell the land whenever the leases are canceled.
Id.—Interpretation op Will.—A will is to be interpreted so as to-mate it effective rather than void, and so as to prevent intestacy; and its words are to be taken in their ordinary and-grammatical sense unless a clear intention to use them in another sense can be collected and ascertained from its terms.
In.—Direction to Collect Rents—Control of Minor Details—Trust.. A direction to a firm of lawyers to receive the rents, and commending to them “minor details,” does not create an express-trust in relation to land, but only makes them trustees of the-money collected, and does not create any trust term suspending: the power of alienation or affect the validity of the will.
Id.—Validity op Bequests.—The validity or invalidity of particular-bequests does not affect the will, if it is otherwise valid.
Id.—Action to Quiet Title op Heir—Defense op Will—Striking Out Denial.—In an action by an heir to quiet title to land of a decedent as against the beneficiaries claiming under his will, where a demurrer to the defense under the will is improperly sustained, an order .striking out a denial of plaintiff’s title as sham is. erroneous.
HARRISON, J. The plaintiff brings this action against the-defendants to quiet his title to the undivided half of certain land in the county of Solano, claiming the same by succession from Mary B. Toland, who died seised of said land November 14, 1895. In answer to the plaintiffs claim the defendants allege that Mrs. Toland made a testamentary disposition of the-land, and that they are the beneficiaries under her said will, set[142]ting forth in their answer a copy of the will. The plaintiff demurred to this answer, and, his demurrer having been sustained, judgment was entered in his favor, from which the defendants have appealed.
The will of Mrs. Toland is olographic, and is as follows: “Being in perfect health and of sound mind, I, Mary Bertha Toland, make, publish, and declare this to be my last will and testament. Should my death occur before the expiration of the leases of my landed estate, I desire the firm of E. B. Mastick, Esq., and his partners, to receive all rents. So soon as the leases of rented lands are canceled, I desire the land to be sold, highlands and tules, with all improvements, to the best advantage.” She then gives directions for the disposition of her personal property and of the proceeds of said sale, in which are the following provisions: “The Toland vault at Laurel Hill Cemetery I wish to be provided with a sum for its care through future years. I will five hundred dollars to Grace Church for pew number twenty, to be kept for my son and members of my family.” Ho one is named by her as executor of the will, but at its close she says: “To the firm of E. B. Mastick I commend all minor details.”
It is contended by the plaintiff in support of his demurrer that by the terms of the will a trust for the management and disposition of the land is created for a definite period of time, and that thereby the power of alienation is suspended in contravention of the provisions of section 715 of the Civil Code, which provides that the absolute power of alienation cannot be suspended by any limitation or condition whatever for a longer period than during the continuance of the lives of persons in being at the creation of thé limitation or condition; with a single exception which is not presented here. It will be observed that this section only forbids a suspension of the power of alienation, and that a provision for the exercise of that power at a future time is not within its provisions, unless such exercise is itself suspended beyond the period therein limited. The provision of section 749 that the delivery of the grant, when the limitation, condition, or future interest is created by grant, and the death of the decedent when it is created by will, is to be deemed the time of the creation of the limitation, condition, or
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