John v. Smith

• Decision Date: 04 February 1899
• Docket Number: 2,421.
• Citation: John v. Smith, 91 F. 827 (9th Cir. 1899)
• Parties: JOHN v. SMITH et al.
• Court: U.S. Court of Appeals — Ninth Circuit

91 F. 827

JOHN v. SMITH et al.

No. 2,421.

United States Circuit Court, D. Oregon.

February 4, 1899

Watson & Beekman and W. W. Thayer, for plaintiff.

Catlin Kollock & Catlin, H. B. Nicholas, and Edward N. Deady, for defendants.

BELLINGERDistrict Judge.

On about the 27th day of May, 1886, James John died in Multnomah county, leaving a will, which, omitting formal parts, is as follows:

'First.I do hereby give, bequeath, and devise all money, property and estate, real and personal, of every kind and nature, of which I may die seised or possessed, or be entitled to at the time of my death, and wheresoever situate or being, to my executors hereinafter named, to and for the following uses and trusts; that is to say: (1) To sell and convert all my personal property into cash, at private or public sale, as to them shall seem best.(2) To lease all my real estate, except that certain block hereinafter mentioned upon such terms, and for such times, and in such parcels as they may deem to the best interest of my estate; but all leases shall terminate fifteen years after the date of my death.(3) After the payment of my funeral expenses, and the expenses of administration upon my estate, to expend all other moneys which shall come to their hands upon my death, from the sales of personal property or from rents of real estate, in the erection of buildings for school purposes upon block No. 29 in the town of St. Johns, Multnomah county, state of Oregon, and employing teachers to teach the common-school branches.(4) To sell all real estate fifteen years after the date of my death, and not before, excepting said block 29, and such other lots and blocks as they may deem necessary for school buildings and grounds, at public or private sale, with or without an order of court, and upon such terms as they may deem advisable, and the proceeds arising from such sales to be delivered to trustees to be appointed as hereinafter provided.If such sales shall not be for cash, then the notes and securities shall be turned over to such trustees.(5) It is my intention that all taxes, claims, charges, and expenses shall be paid out of money coming into the hands of my executors from other sources than from sales of real estate, and that only the remainder shall be sued by them in erecting school buildings and supporting schools.(6) The sales of real estate hereinbefore mentioned to be made by my executors shall be made within eighteen years after my death, and not until fifteen years after my death.(7) It is my desire that my estate shall be used in establishing and maintaining free schools or school in the town of St. Johns, and that such schools shall be public, and at all times open to children of the school district, which shall embrace the town of St. Johns; and, if my executors shall consider it to the best interests of the children of said town and district, they may act in concert with the directors of said school district in erecting school houses and maintaining schools, but any and all buildings erected with money belonging to my estate shall belong to my estate, and not to the district, and all moneys expended in maintaining schools shall be expended under the supervision of my executors as long as they shall continue to act, and until the trustees hereinafter mentioned and provided for shall be appointed and qualify.

'Second.I do hereby nominate and appoint my friends Philip T. Smith, of St. Johns, C. W. Burrage and P. A. Marquam, of Portland, executors of this, my last will and testament; and, in case either of them shall fail to accept the trust, I do hereby suggest my friend John Catlin to act as executor in the place of the one failing to accept.

'Third.It is my will that fifteen years after my death three trustees be appointed, as follows: One by the judge of the circuit court of the state of Oregon in whose judicial district the town of St. Johns may be in, one by the person who shall be district judge of the United States in whose judicial district the town of St. Johns may be in, and the third shall be appointed by the two persons acting as such judges; and the three persons appointed as such trustees shall be and constitute a board of trustees, and such board shall have the possession, management, and control of all moneys and property by them received from my executors, for the purpose of promoting educational interests in the town of St. Johns, and to that end shall use such money and property so as to establish a permanent fund, the interest only to be used in educational purposes, or so much thereof as shall be necessary.The principal to be loaned only upon real estate security.A portion of the principal, which shall be in excess of fifty thousand dollars, in the discretion of such trustees, may be used in erecting buildings for educational purposes, and in employing teachers.

'Fourth.The persons acting as judges aforesaid may from time to time make rules and regulations for the government of the board of trustees, which rules and regulations shall be binding upon such board; and they may fix the qualifications of such trustees, and determine whether or not they shall give security for the faithful performance of their trusts, and to whom such security shall be given.

'Fifth.It is not my intention to direct the particular branches of education which shall be taught, nor in any way limit the use of the money in promoting certain kinds of education; only I desire that it shall never be used to inculcate the doctrines of any religious sect or denomination, one more than the other.

'Sixth.It is my intention and desire to establish a permanent and perpetual educational fund, to be forever used in promoting education.

'Seventh.Whenever a vacancy shall occur in the board of trustees hereinbefore mentioned, such vacancy shall be filled by appointment to be made by the persons occupying the positions of judges as aforesaid.Said board to be always kept full and to consist of three persons, a majority of whom may transact business.'On June 30th of the same year this will was admitted to probate in the county court of Multnomah county, and the defendantPhilip T. Smith was appointed executor in the will, the other persons named therein having declined to act.On November 14, 1891, Benjamin F. John, the plaintiff herein, instituted proceedings in the Multnomah countycourt to revoke the order of probate, and for a decree against the validity of the will, upon the ground of lack of capacity in the testator to make the will, and upon the further ground that the attempted devise to charitable uses created a perpetuity, and was so indefinite and uncertain in respect to the object of the trust, its beneficiaries, and the trustees to execute it, that a court of equity could not enforce it.The first ground was abandoned at the hearing.The county court upon the hearing denied the petition, and on appeal to the state circuit court the decree of the county court was affirmed.Thereupon the plaintiff took an appeal to the supreme court of the state(47 P. 341), where...