54 Cal. 6, 6,324, Hill v. Den

Docket Nº:6,324
Citation:54 Cal. 6
Party Name:HILL et al v. DEN et al.
Attorney:O. P. Evans, T. B. Bishop, and W. M. Francis, for Appellants. Charles E. Huse, for Respondents. Wilson & Wilson, Charles Fernald, and S. M. Wilson, for Respondents Hollister and others. Jarrett T. Richards, for Respondents Allemany and Mora.
Case Date:November 01, 1879
Court:Supreme Court of California

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54 Cal. 6

HILL et al


DEN et al.

No. 6,324

Supreme Court of California

November, 1879

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Appeal from the First District Court, County of Santa Barbara. Sepulveda, J.

The judgment was in favor of the plaintiffs and certain of the defendants. The appeal is by the defendants Richard S. Den and the widow and heirs of Nicholas A. Den, deceased.

The Rancho Dos Pueblos was held under a grant from the Mexican Government, approved by the Departmental Assembly; and the judicial possession had been delivered.


O. P. Evans, T. B. Bishop, and W. M. Francis, for Appellants.


The deed of trust of Sept. 10th, 1851, was a valid instrument, and created a joint trust in Richard S. Den and Nicholas A. Den as to the undivided half of the Rancho Dos Pueblos.

1. The granting words in the deed constitute a good covenant to stand seized to uses according to rules stated in the leading case Roe v. Tranmer, Willes, 632.

2. If the deed was not effectual as a conveyance to Nicholas A. Den, it was operative to vest the whole estate in Richard, even according to the most stringent rules of common-law conveyancing. (Sheppard's Touchstone, p. 82-71; Saunders on Uses, 134; Perkins, 203; Cameron v. Stevens, 4 Allen (N. B.) 141; Williams on Real Property, 181; Smith v. Risley, Cro. Car. 529, cited in Jackson v. Sebring, 16 Johns. 515; Plowden, 5, 156; 1 Coke Inst. 14.)

3. It is also, in this equitable proceeding, a perfect declaration of trust, and amply sufficient to evidence an equitable estate in cestuis que trust. (Perry on Trusts, §§ 8, 273; Hill on Trustees, §§ 64, 65, 441; Shephard v. Shephard, 7 Johns. Ch. 56; Huntley v. Huntley, 8 Ind. Eq. 250; Fisher v. Fields, 10 John. 495; Garner v. Garner, Busb. Eq. 250; Jones v. Obenchain, 10 Gratt. 259.)

4. The testator in his will recognized and confirmed it; and all persons claiming under the will are estopped from disputing its validity. (Adams v. Lansing, 17 Cal. 638.)

5. It is argued that the intent of the grantor to make a provision for his children is to fail, because, as it is claimed, his minor intent to create a joint trust in himself and his brother cannot be effectuated. Under such a construction, every trust by deed or will to two or more jointly would fail, if one or more refusedto accept. But it has been repeatedly held that in such case the whole estate shall vest in those accepting. (Perry on Trusts, sec. 273; Hill on Trustees, 441.)

6. The Court found that the deed was never delivered; but its execution was alleged in the complaint, and admitted by the answers. (Burnett v. Stearns, 33 Cal. 468; Gregory v. Nelson, 41 Id. 284.)


The will gave the trustees no power to sell the lands devised in trust.

2. In this State, where all the property of a testator is charged by law with the payment of his debts, there is no such thing as an implied power in executors to sell. (Drury v. Natick, 10 Allen, 174; Welles v. Child, 12 Id. 333; Cornish v. Wilson, 6 Gill, (Md.) 315; Matter of the Will of Fox, 52 N.Y. 530; Dunne v. Keeley, 2 Dev. 284; Harris v. Douglas, 44 Ill. 471; Manning Heirs, 14 Ala. 611; Hines v. Spruell, 2 Dev. and Vat. 93; Clark v. Riddell, 1 Seargt. & R. 311; Henderson v. Baker, July Term, 1874; Neal v. Patton, 40 Ga. 363; Scott v. Jones, 4 Clark & Fin. 397; Freake v. Crawford, 3 Mylne & C. 502.) Such a power is disputed even in England. (Doe v. Hughes, 6 Ex. 222; Williams on R. P. 211.) By the Constitution of this State the probate jurisdiction is distributed to the County Court, (Const. art. 6, sec. 8) and the children of the testator, the cestuis que trust under the will, were entitled, if the lands devised in trust were to be alienated, to have it done in the forum provided by law, and it could be done in no other way. (Pryor v. Downey, 50 Cal. 409.) A Court of Equity has no jurisdiction to determine what were and what were not valid debts, legacies, etc., nor whether, at the time of the various sales to Hollister and others, the facts existed upon which the Probate Court would have been justified in ordering a sale.


The deeds of Hill and Huse made on sales, under which Hollister, Cooper, and Sturgis claim, are void.

The devise was to the three executors, and they all accepted. Thereby the estate vested in the three in the same manner as if the devise had been to them by name. The two officers of executor and trustee were separate and distinct, and the resignation by Robinson of his office as executor was not a resignation of his office as trustee. (Estate of Delaney, 49 Cal. 85; Parsons v. Lyman, 5 Blatch. 170; 1 Perry on Trusts, § 281; Lewin on Trusts, 168-9; Judson v. Gibbons, 5 Wend. 225; Doe v. McFarland, 9 Cr. 152; Perkins v. Lewis, 41 Ala. 649; Baldwin v. Porter, 12 Conn. 473; Bresh v. Young, 4 Dutch. 237; Ross v. Barclay, 18 Penn. St. 179; Shelton v. Homer, 5 Met. 466; Matter of Wadsworth, 2 Barb. Ch. 384; Quackenboss v. Southworth, 41 N.Y. 117.)

The counsel for Hollister and others misconceive the meaning of the words virtute officii, and these words have no application to the devise in this case. (Tainter v. Clark, 13 Met. 225-7; Conklin v. Edgerton, 21 Wend. 430.)

The trust having vested in the trustees jointly, all must unite to make a conveyance, and these deeds by two of them only are void. (Larned v. Welton, 40 Cal. 349; Butler v. Welton, July Term, 1872; Wilbur v. Almy, 11 How. U.S. 180; Sinclair v. Jackson, 8 Cowen, 543; Brenham v. Wilson, 71 N.Y. 507; Van Rensselaer v. Aiken, 22 Wend. 549; Ridgely v. Johnson, 11 Barb. 527; McRae v. Farow, 4 Hen. and Munf. 444; Story's Eq. Jur. § 1280; Thatcher v. Candee, 3 Keyes, 160; 1 Perry on Trusts, 495, § 411; Tiff. and B. on Trusts, 539; Hill on Trustees, 305; Willis v. Farley, 24 Cal. 500.)

Even if the deeds were inoperative to convey the legal title, since they were in derogation of the trust, the grantees held the estate conveyed upon the same trusts, and with no greater rights than their grantors had. (Perry on Trusts, sec. 860.) The purchasers were bound to examine the will, and to know its contents. (Wilson v. Castro, 31 Cal. 435; Bush v. Ware, 15 Peters, 111.)


The agreement for partition, made March 10th, 1870, between Richard S. Den and Hill and Huse, is absolutely void: 1st, because Richard S. Den had no power under the trust deed to make a partition; and 2nd, because Daniel A. Hill, who was the owner of an undivided interest under the deed from Nicholas A. Den, was not a party to the partition. (Sutter v. San Francisco, 36 Cal. 116; Gates v. Salmon, 46 Id. 374.)


The conveyances to the children were void. No partition, as called for by the will, could be made among the children, until the lands held under the trust had been segregated.


There is no foundation for the claim made here of an estoppel in pais. (Martin v. Zellerbach, 38 Cal. 315; Biddle Boggs v. Merced Mining Co., 14 Id. 279; Smith v. Penny, 44 Id. 165; Davis v. Davis, 26 Id. 38, 44; Carpentier v. Thurston, 24 Id. 281; Marquart v. Bradford, 43 Id. 529.)


The decree of distribution is final and conclusive as to legacies. ( Code Civ. Proc., sec. 1666.)


The Statute of Limitations has no application. (Gibson v. Choteau, 13 Wall. 92; Henshaw v. Bissell, 18 Id. 255; Gardner v. Miller, 47 Cal. 574; Galindo v. Wittenmeyer, 49 Id. 12; Reed v. Ibarra, 50 Id. 465; Miranda v. Toomey, 51 Id. 165.)

Charles E. Huse, for Respondents.

The executors and trustees had power to sell without any order of court, as the estate was devised to them. (Estate of Delany, 49 Cal. 85; Perkins v. Gridley, 50 Id. 80; Deering v. Adams, 37 Me. 264; Knight v. Loomis, 30 Id. 204; Jackson v. Shuber, 7 Cowen, 194.)

The resignation of Robinson, one of the executors, did not disqualify the other two executors from acting. (Probate Act, §§ 96, 100; 4th K. C. 327.)

The decree of the Probate Court settling the accounts of the executors and distributing the estate to the trustees, not having been appealed from, was conclusive as to the rights of the heirs, legatees, and devisees. (Probate Act, §§ 1665, 1666; Estate of Garraud, 36 Cal. 277; Estate of Arnaz, 51 Id. 435; Haverstick v. Trudel, 51 Id. 431; Pond v. Pond, 10 Id. 495.)

Wilson & Wilson, Charles Fernald, and S. M. Wilson, for Respondents Hollister and...

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