Spence v. Widney

California Supreme Court Oct 16, 1896 No. L. A. No. 6Published

Before: McFarland

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Holding. The court held that the evidence did not support the finding that the trust's objectives had become impossible or abandoned, and that the trial court must determine on remand whether the beneficiary is a charitable institution to resolve the trust's validity.

Issues

Whether the evidence supports the finding that the trust's objectives had become impossible to execute.
Whether the evidence supports the finding that the trust's purposes had been abandoned.
Whether the trust is void ab initio for failing to qualify as a charitable trust.
Whether the trust is void as an unlawful perpetuity.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“we are unable to find any evidence which, in our opinion, can be said to justify the finding that the accomplishment of the objects of the trust had become impossible.”

“Since trusts are not favored in the law, the burden will be upon the party seeking to sustain the trust to show that it is within the exception of the statute.”

Synopsis

Trusts—Death of Trustee.—Plaintiff’s Testator Granted lands in trust to six trustees, to be sold, etc., with the approval of any four of them, and the fund derived therefrom to be used for founding an astronomical observatory. Before anything had been done to carry out the trust, three of the trustees died. Held, that under Civil Code, sections 2288, 2289, providing that on the death of one of several cotrustees the trust survives to the others, and that the superior court in the county in which the property is situated may appoint other trustees of the trust, the trust did not terminate as impossible of fulfillment.

Trusts—Unreasonable Delay in Carrying Out.—Plaintiff’s testator granted land in trust to six trustees, the fund derived therefrom to be used in founding an astronomical observatory in connection With a university. Lenses were ordered, but it was found that the income was insufficient to pay for them. With the consent of the grantor the lenses were sold, and it was decided to wait until prices could be realized for the lands which would enable the trust to be accomplished. Held, that under the circumstances a delay of three years in taking further steps to carry out the trust was not unreasonable.

Trusts—Death of Grantor.—In Such Case the Deed Provided that the observatory should be located on Wilson’s Peak, or some other suitable site on the Sierra Madre range, to be selected by the consent and approval of the grantor, who was also one of the trustees. Held, that the death of the grantor before any selection was made did not defeat the execution of the trust.

Trusts—Abandonment.—The Sale of the Lenses and the Delay in selecting a site for the observatory cannot, in the absence of any express declaration to that effect, be construed as an abandonment of the trust.

A Trust for the Founding of an Astronomical Observatory in connection with a university, “to be owned, controlled, and managed by said university,” will not be construed as a trust for a private corporation, and therefore void, in the absence of anything to show whether the beneficiary is an educational institution for the benefit of the public, or conducted for mere private ends.1

Trust for Astronomical Observatory—Perpetuity.—Nor will the trust be declared void as creating a perpetuity unless it appear that the beneficiary is a mere private enterprise and not a public charity.

Opinion

PER CURIAM. The plaintiff, as the executrix of the last will of E. F. Spence, deceased, brought this action to have canceled and set aside a certain conveyance made on January 22, 1889, by said E. F. Spence to M. M. Bovard, E. F. Spence, H. Sinsabaugh, J. P. Widney, P. M. Green and R. M. Widney, “as trustees of an express trust,” upon the ground that the conveyance was void from the beginning, and the further ground that the purposes for which it was made had been abandoned, and the trusts thereby created had become impossible of execution. The court below found the facts and gave judgment as prayed for, from which, and from an order denying a new trial, the defendants appeal.

The conveyance was of certain lots of land in the city of Los Angeles, to be held in trust as follows: “To sell and con[518]vey or mortgage the same at such time and for such price and on such terms as said second parties, or any four'of them, may deem best. The proceeds to be used in purchasing and setting up in first-class working condition the best set of astronomical instruments and telescope that can be purchased with said funds, to be used and known as the ‘ Spence Observatory of the University of Southern California,’ to be owned, controlled, and managed by said university. The rents, income, and profits of said property prior to sale shall be received and collected by M. M. Bovard, one of said trustees, and from same he shall pay taxes, insurance, and such other expenses as may occur in the care and management of said premises, and interest on any mortgage that may be placed thereon. The surplus of said income shall be the property of said M. M. Bovard for his own use and benefit for his services herein. Said observatory to be located on what is known as ‘Wilson’s Peak, ’ in the county of" Los Angeles, state of California, or some other suitable site in the mountains of the Sierra Madre range, to be selected by the consent and approval of E. P. Spence. In case said property, or the proceeds thereof, shall not be used as herein stated, the said proceeds (except the rents as hereinbefore provided) shall revert to and vest in the said grantor, or his legal representatives.” The trust thus created was accepted by all of the six trustees and by the University of Southern California. On April 8, 1889, the six trustees, in writing, authorized Alvin Clark & Sons, of Boston, to contract with M. Mantois, of Paris, for the purchase and delivery of lenses for a forty-inch telescope, at the price of 80,000 francs, to be paid as follows: 20,000 francs to be paid when the first lens should be delivered to and accepted by Clark & Sons in Boston; 20,000 francs more when the second lens should be delivered to and accepted by them; and the remaining 40,000 francs one year after the second payment is due; and it was stipulated that there should be no extra allowance for shortening the time on the work, as the trustees preferred that the work should not be hurried.

Spence v. Widney

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Synopsis

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