Wittfield v. Forster

McFARLAND, J. This action is brought by the executor and heirs-at-law of Gustav Wittfield against the defendants, George Forster and San Diego Lodge No. 35, Free and Accepted Masons, an unincorporated association. There are two counts in the complaint; the first count is in the ordinary form of an action to quiet title to certain lands, and the second count avers the execution by the deceased, Gustav Wittfield, of an instrument in writing, executed by him a few days before his death, [419]purporting to convey all Ms properly, both real and personal, to the said George Forster in trust for the said San Diego Lodge, and the prayer is that said deed be decreed to be void, and to have created no trust, and that the plaintiffs are entitled to the possession of the land embraced by said instrument, and that defendants be decreed to account for the personal property referred to in said instrument. The court rendered judgment for the defendants, and the plaintiffs appeal from the judgment.

The case turns upon the question whether or not the instrument above referred to creates a valid trust. The following is a copy of said instrument:

“Gustavus Witfield to George Foster, Trustee:

“I, Gustavus Witfield, of San Diego, California, for and in consideration of one dollar, to me in hand paid, do hereby grant, sell, and convey to George Foster, of San Diego, Calif., as trustee in trust for San Diego Lodge No. 35, Free and Accepted Masons, of the state of California, all the property I now own, both real and personal, and of whatever kind and nature or description, and wherever situated. To have and to hold unto said trustee, his successors and assigns, forever.

“Witness my hand, this 8th day of September, 1894.

“GUSTAVUS WITFIELD.”

This instrument is manifestly not a conve)rance to Forster for his own beneficial use; its terms clearly show an intention to create a trust, and, if the trust is not sufficiently definite to be carried into effect, or is for any reason illegal or invalid, the instrument either conveys no title or leaves a resulting trust in favor of the grantor or his heirs, where, as in this case, he dies intestate. The law on this subject is very fully stated in the case of Nichols v. Allen, 130 Mass. 212, 39 Am. Rep. 445, and cases there cited. No matter what the terms of an instrument creating a trust may be, the “trustee takes an estate adequate to the execution of the trust, no more and no less.” (Morffew v. San Francisco etc. R. R. Co., 107 Cal. 587.)