Katz v. Wahrhaftig

JONES, J. pro tern.—This appeal is taken from a particular part of a judgment determining adverse claims to the Guadalupe Mine and Eanch in Santa Clara County. The property is comprised of a quicksilver mine and several hundred acres of land, and was owned by Mrs. Jessie S. Gregory who is now [448]deceased. During her lifetime Mrs. Gregory gave deeds to an undivided one-half of the property to her attorneys as their fees for representing her in litigation involving the property. She gave another deed to appellants on February 23, 1937, of the other undivided one-half, and it is from the part of the judgment decreeing that this deed was given upon the trusts found by the court that the appeal is taken.

The court found that by virtue of the execution of the deed appellants acquired no beneficial interest or ownership in the property, but that the title to the undivided half thereof was transferred in trust to be held by them during the lifetime of Mrs. Gregory, subject to her order, and with the trust revocable at her pleasure.

Mrs. Gregory died on December 27, 1939, and it was some four years later, November 10, 1943, that the deed dated February 23, 1937, was recorded by appellant, Wahrhaftig.

Appellants contend that the property was deeded upon a trust different from that found by the court. No mention of a trust is made in the deed. In form it is a straight grant, bargain and sale deed of an undivided one-half interest in the property from Mrs. Gregory to appellants. Their claim of a trust is based on an alleged oral and secret agreement made with Mrs. Gregory by which they contend they became empowered “to hold, manage, control, sell, invest and reinvest said property and make leases and exchanges therefor and were to hold the net income of the trust property for the use and benefit of said trustor during her lifetime and upon her death were to pay the net income thereof to Winifred Stover Donnan, niece of said decedent, until her death, and thereafter were to pay the net income or so much of the principal of said trust property as they in their judgment might decide to be necessary for his maintenance and support, to one Dr. Stover, father of Winifred Stover Donnan, until his death, the net income and principal to be payable directly to the beneficiaries and to be free from all claims of creditors to the fullest extent permitted by law and upon the death of the survivor of said Winifred Stover Donnan and Dr. Stover to hold all said property and the proceeds and avails thereof in trust for and to devote the income thereof and so much of the corpus thereof as they in their judgment might elect for the use of Jewish refugees from persecution and to apply the income and so much of the principal as they might desire even to the full 'amount thereof, for the relief of such Jewish refugees. ’ ’