In re Washburn's Estate, 11 Cal.App.

735 (1909)
106 P. 415

when it depends upon the happening of a contingent event,

whether the estate limited as a remainder shall ever take effect
11 Cal.App. 735, 106 P. 415
at all.
In the Matter of the Estate of ALBERT
HENRY WASHBURN, Deceased. ID.--VESTED AND CONTINGENT GIFTS TO CLASS OF
PERSONS.
JEANIE W. HIGGINS, Guardian --If there are words of present gift to a class of persons in
of HENRIETTA HIGGINS and existence, in remainder, the remainder is vested, though it
CHARLES HIGGINS, Minors, Appellant, cannot be ascertained until the determination of the particular
estate who will ultimately take; but if futurity attaches to
v.
the gift, so that it is not intended to take effect until the
E. P. WASHBURN, J. S. WASHBURN determination of the particular estate, the remainder to a class
and J. B. COOK, Trustees Under of persons then existing is contingent.

Will of Said Deceased, Respondents.

ID.--PREFERENCE OF VESTED REMAINDER--
Civ. No. 630. LANGUAGE OF WILL CONTROLLING.
District Court of Appeal, Third District, California. --Although the law prefers to consider future estates as vested,
November 13, 1909. yet it also seeks to effectuate the will of a testator, and if
the language used shows his intention not to create a vested
*736 estate, but expresses a contingency as to who shall
HEADNOTES
take, the language of the testator must control.
WILLS--DEVISE IN TRUST--INCOME DURING
LIVES OF WIDOW AND DAUGHTER--CONTINGENT ID.--FAIR CONSTRUCTION OF WILL SHOWING
REMAINDER TO SURVIVING CHILDREN AND CONTINGENT REMAINDER.
GRANDCHILDREN. Giving a fair construction to the will, and yielding to the
--Where a will devised property to trustees in trust to pay intention of the testator, it is concluded that the remainder
the income to the surviving widow of the testator, and to his is contingent, and will only accrue to such children of the
married daughter, and to the survivor of them during life, and married daughter as may be living at the time of her death.
devised the remainder upon the termination of the trust to the
then living children of the married daughter, or her then living
grandchildren by right of representation, such devise of the ID.--CONVEYANCE OF LIFE ESTATE TO CHILDREN IN
remainder is of a contingent remainder, which does not vest ESSE--MERGER NOT DISCHARGING TRUST.
in any child or grandchild of the daughter until her death. --A conveyance of the whole surviving life estate vested in
the surviving married daughter to her children in esse does not
create a merger discharging the trust, which must be vested in
ID.--UNCERTAINTY OF RIGHT OF ENJOYMENT. the trustees until her death, notwithstanding such conveyance.
--It is the uncertainty of the right of enjoyment, and not the
mere uncertainty of the actual enjoyment, that makes such
remainder contingent. The uncertainty of any of the children ID.--CONDITIONS OF MERGER NONEXISTENT.
of the married daughter surviving her renders the interest of --The whole legal and equitable title must exist in the same
any of them contingent. person to constitute a merger of a life estate in the fee. The
legal title being in the trustees, and the children in esse having
no existent legal estate, there could be no merger of the life
ID.--DISTINCTION BETWEEN VESTED AND estate in the fee. There can be no merger where a life estate
CONTINGENT REMAINDERS. and a contingent estate are united.
--A remainder is vested, when there is some person in esse
known and ascertained, who by the instrument creating the
estate is to take and enjoy the estate upon the expiration of the ID.--RULE IN EQUITY.
existing particular estate, and whose right to such remainder --Wherever it would work injustice or defeat the intention of
no contingency can defeat; but the remainder is contingent, the donor to work a merger, the two estates will be kept alive,

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In re Washburn's Estate, 11 Cal.App. 735 (1909)
106 P. 415

although they come together in one person. While merger brothers, Edward P. Washburn and John H. Washburn, of
at law follows immediately upon the union of a greater and Wawona, and to Jay B. Cook of Yosemite Valley; in trust,
lesser estate in the same ownership, it does not so follow in however, to hold, manage and control, and to invest and
equity. There the doctrine is not favored, and the estates will reinvest the same in such manner as in their judgment may
be kept separate where the intention of the parties and justice seem best, and to pay over to my beloved wife Jean Bruce
require it. Washburn for and during the term of her natural life one
half of the entire net income arising therefrom, in monthly
installments; and to pay over the other one-half of said
ID.--MANIFEST INTENTION OF TESTATOR TO
net income in monthly installments to my daughter Jeanne
PRESERVE TRUST REGARDLESS OF CONTINGENT
Washburn Higgins, wife of C. C. Higgins for and during the
REMAINDER.
term of her natural life.
--Even if it be conceded that the remainder was vested and
not contingent, it is held that it was the manifest intention
‘Upon the death of either my said wife or my said daughter the
of the testator that the trust should be kept alive for the
one-half of the income to which the one so dying was entitled
benefit of all parties concerned, and safely transmitted to the
shall be paid to the survivor until her death.
remaindermen, consisting not only of the children in esse,
but all who should become the future issue of the married
‘Upon the death of such survivor this trust shall cease and
daughter, during her coverture, and to be transmitted to them
determine and all of said property so held in trust, together
upon her death.
with all accumulations thereon and thereof, shall vest in and
belong to Henrietta Higgins and Charles Higgins, the children
ID.--TRUST IN FAVOR OF ALL ISSUE. of my said daughter, and such other children as may be born
--Where a trust is in favor of the children now living, or that to her, or in such of them as shall then be living, share and
may hereafter be born of certain parents, the trustees will share alike, the children of any deceased child, if such there
retain the title so long as there is a possibility of issue, which, be, to take by right of representation.
in the eye of the law, continues as long as the woman lives or
coverture exists.
‘III.
‘I hereby appoint my said brothers Edward P. Washburn and
SUMMARY
John S. Washburn and my friend Jay B. Cook, to be the
Executors of this my last Will and Testament, and I direct that
APPEAL from a decree of the Superior Court of Mariposa
no bond or other security be required of them or either of them
County distributing the estate of a deceased person. J. J.
at any time for the faithful performance of their duties as such
Trabucco, Judge.
Executors or as such Trustees. *738
The facts are stated in the opinion of the court. *737
‘I hereby authorize and empower my said Executors to lease
or sell any of the property of my Estate at public or private
COUNSEL
sale and with or without notice, and without the previous or
Everett Ball, and John M. Corcoran, for Appellant.
any order of any court.‘
Wilson & Wilson, for Respondents.

CHIPMAN, P. J. It appears from the findings of the court that the estate is
in condition to be closed; all the property was community
Petition for final distribution of the estate of deceased. After property, to one-half of which Jean B. Washburn became
making certain bequests of money, which have been paid, the entitled on the death of deceased; since his death his wife died,
will of deceased provides as follows: but prior thereto she conveyed all her interest in the estate to
her daughter, Jeanie W. Higgins, and except as to her interest
in certain shares of the capital stock of the Yosemite Stage
‘II.
and Turnpike Company (2,662 12 shares) the one-half of said
‘All the rest, residue and remainder of my Estate, of every
property to which the widow was entitled has been distributed
kind and character, and wheresoever situated, of which I may
as required by law; Henrietta and Charles Higgins, mentioned
die seized and possessed, I give, devise and bequeath to my
in said will, are minors and children of the said Jeanie, but

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In re Washburn's Estate, 11 Cal.App. 735 (1909)
106 P. 415

their age does not appear, and she has been appointed and is there is nothing to which the trust can attach; that thereupon
the duly qualified and acting guardian of their estates and they it became the duty of the court to distribute the estate to the
are her only children; prior to filing the petition herein the persons entitled by law, namely, to the two children, Henrietta
said Jeanie conveyed and relinquished to her said children, and Charles, subject to open and let in any after born children,
Henrietta and Charles, ‘all the rights and interests to which she if any.
was entitled under the will of said decedent by an instrument
in writing‘ (which is set forth in the findings); the residue 1. It is important, in some aspects of the case, to discover what
of said estate of decedent consists of 5,325 shares of the interest these children, born and unborn, take under the will
Yosemite Stage and Turnpike Company and 25,000 shares of and when it vests. Future interests are vested or contingent.
the Wawona Hotel Company. Jeanie W. Higgins is the wife (Civ. Code, sec. 693.) ‘A future interest is vested when there
of C. C. Higgins, now living. In its conclusions of law the is a person in being who would have a right, defeasible or
court found that the said Jeanie W. Higgins, as grantee of her indefeasible, to the immediate possession of the property,
mother, is entitled to have distributed to her one-half of the upon the ceasing of the intermediate or precedent estate.‘ (Civ.
stage company stock (2,662 12 shares), and that the trustees Code, sec. 694.) ‘A future interest is contingent, whilst the
under the will are entitled to have distributed to them, in trust, person in whom, or the event upon which, it is limited to take
all the remaining property of decedent, ‘to hold, manage and effect remains uncertain.‘ (Civ. Code, sec. 695.) *740
control the same in such manner as in their judgment may
seem best, and to pay over to the said Henrietta W. Higgins There is no subject of the law more abstruse or in which
and Charles Higgins, for and during the term of the natural life greater refinement of learning has been displayed than that
of said Jeanie W. Higgins, and until her death, the entire net of remainders. No definitions ever have been or ever will
income arising from said property, in monthly installments,‘ be given which will relieve all cases from doubt. Mr. Kent
and upon the death of the said Jeanie the said trust shall cease, commends Mr. Blackstone's treatment as far surpassing
and all of said property so held in trust, and its accumulations, all others for its ‘perspicuity, simplicity, comprehension,
shall vest in and belong to said Henrietta and Charles Higgins, compactness, exactness, accuracy and admirable precision.‘
children of said Jeanie, ‘and such other children as may be And yet he adds: ‘I have read the chapter frequently but
*739 born to the said Jeanie W. Higgins, or in such of them never without a mixture of delight and despair.‘ (4 Kent's
as shall then be living, share and share alike, the children Commentaries, 208, note, 14th ed., by Mr. Gould.)
of any deceased child, if such there be, to take by right of
representation.‘ Decree was entered accordingly. Unquestionably, the interest of the unborn children is
contingent, because it is uncertain whether they will ever
The appeal is by the plaintiff from that portion of said decree come into existence, and should this happen, there is the
of final distribution as distributes to the trustees the property still further contingency upon which the taking by them of
described and refusing to distribute said property as prayed any interest would depend-namely, that the life tenant be
for in said petition-namely, that all the property except one- then living. The interest of Henrietta and Charles is not so
half of the stage company stock be distributed to Henrietta plainly apparent. The broad distinction between vested and
and Charles Higgins. Briefly stated, the position of appellant contingent remainders is this: In the first, there is some person
is: That the widow of deceased being dead, Mrs. Higgins, as in esse known and ascertained, who, by the will or deed
sole survivor of the life estate, became the sole beneficiary of creating the estate, is to take and enjoy the estate upon the
the trust, and that when she conveyed that interest to Henrietta expiration of the existing particular estate, and whose right to
and Charles, her only children in esse, they became vested such remainder no contingency can defeat. In the second, it
with the entire fee; that the object of the trust was solely to depends upon the happening of a contingent event whether the
collect and pay over to Mrs. Higgins the net income of the estate limited as a remainder shall ever take effect at all. It may
property during her life, and as she had conveyed this interest never happen, or it may not happen until after the particular
to her two children, she had no further interest in the estate, estate upon which it depends shall have been terminated, so
and the object of the trust ceased; that when the vested interest that the estate in remainder will never take effect. (2 Washburn
in remainder and the intermediate and precedent estate of their on Real Property, sec. 1332.)
mother was centered in the children, the precedent estate was
merged in the greater vested estate in remainder in fee, and the Speaking of the New York statute, which is the same as
children became vested with the entire title in fee and hence ours, it was held in the case In re Hoadley, 101 Fed. 233,

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In re Washburn's Estate, 11 Cal.App. 735 (1909)
106 P. 415

that if there are words of present gift to a class of persons take effect in possession immediately on the determination
in existence, the remainder is vested, though it cannot be of the precedent estate, irrespective of any collateral event,
ascertained until the determination of the particular estate provided the estate in remainder does not determine before
which, if any, members of the class will ultimately take; but the precedent estate. (24 Am. & Eng. Ency. of Law, 2d ed.,
if futurity attaches to the gift so that it is not intended to p. 389.) *742
take effect until the determination of the particular estate, the
remainder is contingent. The will here provides that ‘upon the death of such survivor
this trust shall cease and determine, and all of said property ...
The existence of a contingency, irrespective of the duration of shall vest in and belong to Henrietta Higgins and Charles
the remainder, on which contingency possession or enjoyment Higgins, the children of my said daughter, and such other
depends, is the fundamental characteristic of a contingent children as may be born to her, or in such of them as shall then
remainder and forms a true, tangible and practical *741 be living.‘ This latter clause refers to all of the class-Henrietta
criterion by which the contingent character of a remainder is and Charles and any other children born to their mother-and
limited on an uncertain event, that is, an event which may the property is to vest ‘in such of them as shall then be living,‘
never happen, or on an event which may not happen till after i. e., ‘upon the death of such survivor.‘
the determination of the particular estate, though it is certain
to happen at some time, or when the remainder is limited to a By express terms the trust was to continue until the death
person not in being or not ascertained. (24 Am. & Eng. Ency. of Mrs. Higgins, and that was the precise event upon the
of Law, p. 400.) happening of which the title was to vest in the children living
at the death of the testator or ‘such other children as may
The law prefers to consider future estates as vested, but be born to her,‘ Mrs. Higgins. It seems to us that nothing is
the law also seeks to effectuate the wishes of the testator, lacking to make entirely clear the intention that the children
and when his desire is clearly expressed, as we think it is living at the death of the life tenant or ‘the children of any
here, it should be carried out, regardless of the conventional deceased child‘ then living, were to take, and this could be
distinctions made between vested and contingent remainders, known only when the contingent event happened. It is the
for this is the paramount duty of the court. ‘The will may uncertainty of the right of enjoyment, and not the uncertainty
disclose an intent not to give a vested interest. This is effected of its actual enjoyment, that renders the remainder contingent.
by words of contingency as to the person who shall take, e. (4 Kent's Commentaries, 202-206.) The uncertainty of any of
g., a devise to A, remainder to his children living at the time the children of the class surviving Mrs. Higgins renders the
of his death.‘ (24 Am. & Eng. Ency. of Law, 2d ed., p. 383.) interest of any such contingent.
In all cases it is the intention, expressed in the instrument
creating the expectant estate, that is to govern, and, therefore, A few cases may be cited as illustrative of the principles we
if the language employed shows an intention to postpone the have endeavored to point out.
vesting until the happening of a certain event, it is contingent.
(24 Am. & Eng. Ency. of Law, 2d ed., p. 392, and cases noted.) In Hayward v. Peavey, 128 Ill. 430, [15 Am. St. Rep. 120,
21 N. E. 503], the will devised the estate to the testator's
The present capacity to take in possession is not a universal executors to be held in trust for his widow during widowhood,
test. Thus, if land be given to A for life and in case B survives and upon the death or remarriage of the widow, the executors
A then to B in fee simple, the remainder to B is contingent, were to proceed to divide the remainder among his children
because it depends upon an uncertain event, namely, the death specially named, ‘as may then be alive, or the lawful issue
of A in the lifetime of B; but all the while that A and B are both of such of them as may be dead leaving lawful issue.‘ The
alive, B's remainder has a present capacity to take effect in interest of one of the sons was sold under execution, and it
possession should the possession become vacant by the death was conceded that if this interest was merely contingent the
of A. (24 Am. & Eng. Ency. of Law, 388.) Numerous instances purchaser took nothing, but otherwise if vested. The court
of contingent remainders of this sort are cited in the notes. said: ‘A remainder is said to be vested when a present interest
passes to a party, to be enjoyed in the future, so that the estate
The true criterion of a vested remainder is the existence is invariably fixed in a determinate person after the particular
in an ascertained person of a present fixed right of future estate terminates; while a contingent remainder is one limited
enjoyment of the estate limited in remainder, which right will to take effect, either to a dubious and *743 uncertain

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In re Washburn's Estate, 11 Cal.App. 735 (1909)
106 P. 415

person, or upon a dubious and uncertain event. (2 Blackstone's the life tenant leaving children surviving her. Said the court:
Commentaries, 168.) ... But it does not necessarily follow that ‘The clearly expressed intention of the testator was to give
every estate in remainder which is subject to a contingency his wife a life estate in the premises, with remainder in fee
or condition is a contingent remainder. The condition may to such of her children as might be living at the time of her
be precedent or subsequent. If the former, the remainder death; then, to meet the possibility that his wife might die
cannot vest until that which is contingent has happened, leaving no children surviving her, he made the devise over to
and thereby become certain. If the latter, the estate vests Moses Golladay and his heirs. Here the devise depended upon
immediately, subject to be defeated by the happening of the a dubious and uncertain contingency-that is, the death of the
condition. (Citing cases.) It is plain that, in the present case, life tenant without leaving children surviving her.‘
the estate devised, so far as Robert Hayward was concerned
(the son above referred to), was subject to a contingency, In United States Trust Co. v. Roche, 116 N. Y. 120, [22 N. E.
viz., his being alive at the time the particular estate should 265], by a trust deed a life estate was given to Anna S. Stagg,
be determined by the death or remarriage of the widow. remainder to her children living at the time of her death. In
Whether this contingency constituted a condition precedent an action to foreclose a mortgage during the life of Anna it
or subsequent must be determined by the language of the will. was held that her children were not necessary parties. The
It seems to be clear, though not wholly free from doubt, that court said: ‘No legal estate in remainder, vested or contingent,
the intention was not to devise to his son Robert a present was created by the deed of trust, but the entire legal estate
estate subject to be defeated in case of his death before the was vested in the trustee, where it now remains, and James
termination of the particular estate, but to make the estate C. Foster (child of Anna) has no legal estate of any kind to
itself conditional upon his being alive at that time.‘ In support protect. ... James C. Foster has not a vested interest in the
of the opinion the following cases were cited as instances subject of the trust, nor its avails. His interest is contingent
where the remainder was contingent: Olney v. Hull, 21 Pick. upon his surviving his mother.‘
311, where the words were: ... ‘the land shall then be equally
divided among my sons‘; Nash v. Nash, 12 Allen, 345, the In Smith v. Edwards, 88 N. Y. 103, certain property was to
language was ... ‘at her death to such of his children as might be distributed at the time of the marriage or majority of the
then be living.‘ In Thompson v. Ludington, 104 Mass. 193, youngest grandchild who ‘may then be living.‘ The court
the provision was: To the widow during life or widowhood, discussed at some length the question as to the time the
and directed that at her death or marriage the estate should be interest vested. The court said: ‘The condition of survival
divided ‘equally to and among such of my children as shall attached to the gift itself; who the legatees would in fact prove
then be living.‘ The distinction made between a remainder to be dependent upon a future contingency. Those who were to
subject to a condition precedent and a condition subsequent take in the prescribed event were uncertain until it happened;
is well shown in Blanchard v. Blanchard, 1 Allen, 223, and might not be any of those in esse at testator's death, and might
in that case the court said: ‘There being in that portion of prove to be a grandchild born twenty years later.‘ *745
the devise no words of contingency, such as 'if they shall be
living at her death,’ or 'to such of them as shall be living,' the In Everitt v. Everitt, 29 N. Y. 75, the court said: ‘The leading
usual and proper phrases to constitute a condition precedent, inquiry upon which the question of vesting or not vesting
a vested remainder in fee was created.‘ turns is whether the gift is immediate, and the time of
payment, or of enjoyment only postponed, or is future and
In the recent case of Golladay v. Knock, 235 Ill. 412, [126 contingent, depending upon the beneficiary arriving of age or
Am. St. Rep. 224, 85 N. E. 649], the will devised the testator's surviving some other person, or the like. If futurity is annexed
property to his wife, Nancy Golladay, ‘and to her children to the substance of the gift, the vesting is suspended; but if it
*744 after her death; ... and if the said Nancy Golladay appear to relate to the time of payment only, the legacy vests
does not have children that will live to inherit said real estate, instanter.‘
that the said real estate, at the death of Nancy Golladay and
her children, fall to Moses Golladay and his heirs of said For the rule in England, see chapter 2, 2 Redfield on Wills,
county.‘ The court held, as in Hayward v. Peavey, 128 Ill. second edition, 213. This author says: ‘Where a gift over is
430, [15 Am. St. Rep. 120, 21 N. E. 503], that the devise made to take effect in favor of a class, it is in general held
over to Moses Golladay could not be construed as vesting a that the gift in remainder is contingent, as to the individual
present interest in fee, subject to be devested upon the death of devisees, since the persons composing the class are not to

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In re Washburn's Estate, 11 Cal.App. 735 (1909)
106 P. 415

be ascertained until the period of the determination of the such case, being merged in the legal estate. (2 Washburn on
intervening estate, and there could be no vesting until the Real Property, sec. 1469.)
devisees are ascertained.‘ (Id., p. 239.) While in many cases
this, as all other rules, are made to bend to circumstances, it is To have the union operate a merger, the estates must unite
everywhere held that it is competent for the testator in terms in one and the same person, having a commensurate and
to direct whether the estate shall vest or not, and where this is coextensive interest in each, with no intervening interest
done all construction is excluded. (Id., p. 244.) in another. A legal estate in fee in one who has only a
partial equitable interest, or vice versa, would not merge. (Id.,
Giving a fair construction to the will and yielding to the sec. 1484.) Wherever it would work injustice, or defeat the
apparent intention of the testator, we reach the conclusion that intention of the donor to work a merger, the two estates will
the remainder is contingent and will go to such of the class be kept alive although they come together in one person. (Id.,
only as may be living at the death of Mrs. Higgins. sec. 1486.) While merger at law follows immediately upon the
union of a greater and lesser estate in the same ownership, it
We might, perhaps, have rested the question with the decision does not so follow in equity. There the doctrine is not favored
in the case of In re Winter, 114 Cal. 186, [45 Pac. 1063], had and the estates will be kept separate where the intention of the
we not thought it best to again examine the matter. In that parties and justice require it. (Smith v. Roberts, 91 N. Y. 475.)
case the will bequeathed to the testator's wife all of his estate
except a certain ranch, which latter he bequeathed to her ‘for The court said, in Pryor v. Winter, 147 Cal. 554, [109 Am.
the remainder of her life; then it is to be sold and the proceeds St. Rep. 162, 82 Pac. 202]: ‘Section 741 of the Civil Code
divided between my surviving brothers and sisters.‘ It was expressly declares-what was always the law-that 'no future
held that ‘it was reasonably clear the intention of the testator interest can be defeated or barred by any alienation or other
was to bequeath the money proceeds of the ranch to those act of the owner of the intermediate or particular interest.’‘
brothers and sisters living at the time appointed in the will for *747 3. But if we are wrong in holding the remainder to
the distribution of the money.‘ be contingent, we find insuperable objections to the scheme
worked out by appellant. The object of the transfer doubtless
2. Appellant's further contention is that the children named not was to discharge the trust, the benefits of which the mother
only took a vested remainder, but that when the lesser estate, was willing to forego, that she might, at least during their
i. e., the life estate, was conveyed to them it *746 became minority, manage and control the property for her children,
merged in the greater estate, i. e., the remainder; that the trust freed from any restraints by the trustees. Is this allowable by
was thus terminated and immediately they were entitled to the the simple expedient of a transfer of the life estate and in the
fee absolute. Considered as a contingent remainder, however, absence of any pretense of mismanagement or fraud of the
there could be no merger, for the fee is in the trustees. trustees? Aside from the question, raised in the briefs, that this
The definition of a merger precludes the possibility of its may not be done, except by bill in equity (a question we do
happening where a life estate and a contingent estate only are not find it necessary to decide), it seems to us that to carry
united. The whole title, legal as well as equitable, must unite out appellant's plan we must fly in the face of the testator's
in one and the same person. Where the two thus meet, without express directions, and this would be violative of the first duty
any intermediate estate, the less is immediately annihilated, of the court-namely, to effectuate his intention. The will bears
or, in law phrase, ‘merged.‘ (Anderson's Dictionary; 2 the earmarks of skilled professional workmanship. That it was
Blackstone's Commentaries, 397; 1 Kent's Commentaries, drawn with a view to have its provisions faithfully and, at
265.) The merger here claimed is of interests in personal least, substantially, followed cannot be doubted. The testator
property, and if the doctrine of merger may apply in such case, selected near of kin as his trustees and devised the property
which is certainly unusual, the same principles would apply to them in trust, with power to manage and control the
as in cases of real estate, we should think. property and pay over the incomes to his widow and daughter
for their support and maintenance and to the successor of
Where a trust has once been created in respect of real estate, either of them. He expressly provided that the trust should
it attaches to and binds itself upon the estate, and can never continue during the life of the survivor, whichever one it
be detached from it, or extinguished, except by a union of might be, and he expressly declared that the property was to
the legal and equitable estates in one person; the equitable, in vest in the children of his daughter then living or who might
thereafter be born to her, at the death of the survivor, who

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In re Washburn's Estate, 11 Cal.App. 735 (1909)
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might happen to be his widow, and not sooner. The character to set aside the careful, wellconsidered and entirely sufficient
of the property suggests a necessity for wise and prudent means of effecting the testator's object which he provided?
management, for it consists of shares in a stage company and
in a hotel property. If the testator had thought it unnecessary It is altogether too narrow a view of the trust to say that the
to place the management in the hands of his chosen trustees testator's widow and her daughter were the only beneficiaries
and for the period named by him, an entirely different method of the will, or that they were the principal or only objects
would have been adopted. But his desire was not only to of testator's bounty. They were to receive only the *749
provide support for his widow and daughter and the survivor incomes, rents and profits; the corpus of the estate was to
of either, but to preserve the corpus of the estate for his be husbanded, managed and controlled for the benefit of
daughter's children, and the duties of the trustees were to two children then living and others who might come after-
cease ‘upon the death of such survivor,‘ the property and the latter a probable event, for Mrs. Higgins' husband is
the accumulation to then vest in the children. It must not be living. The control and management of the estate was a large
overlooked that the will devises the property to the trustees, consideration with the testator, and, that the property might
and it is only the incomes which are to be *748 paid to be protected and safely transmitted to the remaindermen was
the widow and daughter. The remaindermen come into their doubtless also of much concern to the testator in selecting his
own at the termination of the trust, the period of which is trustees. It is inconceivable that he ever thought it possible
definitely fixed. The trustees were given power to lease or sell or ever intended that the scheme he had so carefully devised
any of the property at public or private sale with or without for the benefit of all concerned should be disregarded and one
notice and without the previous order of any court, and the wholly inadequate to accomplish his object substituted. What
testator's confidence in his trustees was such that he directed say the courts upon this question?
that no bond or other security be required of them, or either of
them, at any time for the faithful performance of their duties. In Walker v. Sharpe, 68 N. C. 363, a life estate was given the
All these important powers and duties are to be no longer widow, remainder to her children at her death. The children
imposed upon anyone, and the control and management of were all of age and the widow joined with them for a
the property is to pass to these two minor children with dissolution of the trust. There was no possibility of other issue
absolutely no provision for the protection of unborn children, and the trustees did not object. It was held that the children's
except upon the principle that should any appear hereafter, interest vested at the death of their mother, and her surrender
the estate will open and let them in. The property involved of the life estate was without a valuable consideration and was
is all personal property- shares in corporations-and may pass not entitled to the approval of the equity court. In Brady v.
by indorsement. The decree prayed for places no restrictions Walters, 55 Ga. 25, the land was conveyed to B, the wife of C,
upon these children in the disposition of the property, and it for her sole and separate use, and the use of her children born
would be extremely difficult to so frame a decree as would and to be born. Held, that a trust estate was created in B and
protect unborn heirs, as might readily be done if the property for the use of her children, and that the trust was not executed
were real estate. These children could vote the stock only until all probability of the birth of any more children had
through their guardian (Civ. Code, sec. 313); and, if an action become extinct. In Brandenberg v. Thorndike, 139 Mass. 102,
in court should become necessary, it must be conducted by a [28 N. E. 575], a life estate was given to the widow, remainder
guardian. (Civ. Code, sec. 42.) to be paid three years after her death to certain named nieces
and nephews then surviving. The widow waived her life estate
Counsel for appellant was asked by my associate, Judge Hart, and took her dower instead. The court said: ‘We must construe
at the argument, how he would frame a decree that would the bequest in favor of the nieces and nephews in the same
place the entire trust fund in the hands of two minors and manner as if the widow had accepted the provisions of the
their guardian, and at the same time adequately protect the will. Recurring to his bequest, it is clear that it cannot now be
unborn children, and no satisfactory answer was forthcoming. determined who will take under it. It is a bequest to the nieces
The difficulties of accomplishing such a task are many. For and nephews 'then surviving’ and to the issue of each niece or
myself I can see no way, if the estate is to be distributed to nephew 'the deceased leaving issue them surviving.' It cannot
these children, except to establish by the decree some sort of be known that any of the nieces and nephews now living will
a substituted trust for that created by the testator, and how can take anything under this bequest. This furnishes a conclusive
these minors act as trustees during minority? But why struggle reason why the trust cannot now *750 be terminated.‘ The
doctrine is stated in 28 American and English Encyclopedia

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 7

In re Washburn's Estate, 11 Cal.App. 735 (1909)
106 P. 415

of Law, second edition, page 946: ‘Where a trust is in favor

We think the trial court reached a correct conclusion, and the
of the children now living or that may hereafter be born of
judgment is therefore affirmed.
certain parents, the trustees will retain the title as long as there
is a possibility of issue, which in the eye of the law continues
as long as the woman lives, or coverture exists.‘ (Godfrey
v. Roberts, 65 N. J. L. 323, [55 Atl. 353]; Bearden v. White Hart, J., and Burnett, J., concurred.
(Tenn.), 42 S. W. 476.) Cases where all the interested parties A petition to have the cause heard in the supreme court, after
or parties who may be interested in the future are in esse and judgment in the district court of appeal, was denied by the
acting or capable of acting suo jure, are not in point here and supreme court on January 10, 1910.
do not apply to a trust where the persons who are to take can
only be determined at the termination of the life estate or death
of the life tenant.

End of Document © 2022 Thomson Reuters. No claim to original U.S.

Government Works.

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 8