Nixon v. Brown

• Decision Date: 20 April 1923
• Docket Number: 2560.
• Citation: 214 P. 524,46 Nev. 439
• Parties: NIXON ET AL. v. BROWN ET AL.
• Court: Nevada Supreme Court

214 P. 524

46 Nev. 439

NIXON ET AL. v. BROWN ET AL.

No. 2560.

Supreme Court of Nevada

April 20, 1923

Appeal from District Court, Humboldt County; C.J. McFadden, Judge.

Action by Kate I. Nixon and others against W. A. Brown and others. Judgment for plaintiffs and defendants appeal. Reversed and remanded, with instructions.

Thomas A. Brandon, of Winnemucca, for appellants.

Warren & Hawkins and Warren & Dignan, all of Winnemucca, for respondents.

McNAMARA District Judge.

Respondents commenced an action in equity in the Sixth judicial district court of the state of Nevada to set aside a certain instrument designated a "deed of trust," executed on the 17th day of July, 1908, by the late George S. Nixon then United States Senator from Nevada, which position of honor and trust he held until his death, by which instrument certain premises situate in the town of Winnemucca, known as the "Nixon Opera House," were conveyed to certain residents of said town as trustees for the benefit of the people of Winnemucca, subject to certain conditions. The instrument was signed and acknowledged by the donor and delivered to the trustees on said date, who made written acceptance thereof on the instrument itself. The instrument is as follows:

"This deed of trust, made this 17th day of July, A. D 1908, between George S. Nixon of the city of Reno, county of Washoe, state of Nevada, the party of the first part and M S Bonnifield, W. A. Brown, Frank Germain, M. Reinhart, George M. Rose, Albert Seeliger, J. Sheehan, M. D. Staunton, A. F. Trousdale, of the town of Winnemucca, county of Humboldt, state of Nevada, as trustees for carrying into effect the trust hereinafter provided, the parties of the second part, witnesseth:

That whereas the party of the first part, George S. Nixon, in appreciation of the mutual esteem and kindly feelings now and heretofore existing between himself and the citizens of the town of Winnemucca, desires to manifest and perpetuate the same by deeding and conveying to the above-named parties, parties of the second part, and to their successors in interest, that certain piece, lot or parcel of land in the town of Winnemucca, Nevada, upon which is situated that certain building and appurtenances thereof, commonly known as and called the 'Nixon Opera House,' hereby deeds, conveys and forever quitclaims unto the said parties of the second part, and to their successors in interest, as hereinafter provided, subject to the conditions of trust in this deed hereinafter specified, the following real estate, to wit: Town lots number seven (7) and eight (8), on the corner of Third and Melarkey streets in Block T of the said town of Winnemucca, as surveyed and platted on the map of the town site of said town, together with all and singular the building or buildings, and all appurtenances thereof, and together with all furnishings therein contained, to have and to hold forever, subject to the following conditions, to wit:

First: The said real estate, building or buildings thereon situated, and furnishings thereof, shall be kept free from debt as they now are.

Second: Said premises and buildings shall be for the use of the people of Winnemucca, Nevada, on all public occasions, in a manner not deemed harmful, inexpedient or unwise by the said parties of the second part, or their successors in interest, and no discrimination in the use thereof on such public occasions by the said public shall be made on account of political opinions, religious beliefs, or any other considerations whatsoever not immoral or detrimental to good citizenship.

Third: The said parties of the second part and their successors in interest, as hereinafter provided for, shall have the right to exact such compensation for the use thereof, in cases of entertainment or amusement, usually had or given for hire, but such compensation shall be used only for the purpose of keeping said premises in repair, suitable for the uses for which the same has been constructed, and for meeting such ordinary expenses as may be incurred or which may accrue and be a charge against the same.

Fourth: In the event of the death, removal from the said Winnemucca, or the resignation of either of the said parties of the second part, the remaining surviving parties of the second part shall have the right, and it shall be their duty, to select from among the actual residents of the said town of Winnemucca, a successor or successors to fill such vacancy or vacancies, as the same may occur; and said successor or successors shall be under the same obligations, and have the same right to fill any further vacancies which may occur, in the same manner as is herein conferred upon the said parties of the second part, herein named.

George S. Nixon."

"We, the undersigned, parties of the second part, herewith by our signatures, receive as trust grantees the premises and properties in the foregoing deed mentioned, and agree to hold, manage and control the same, as honorary trustees, and without compensation, subject to the conditions and restrictions in the foregoing deed specified.

M. S. Bonnifield. W. A. Brown.

Frank Germain. M. Reinhart.

George M. Rose. A. Seeliger.

J. Sheehan. M. D. Staunton.

A. F. Trousdale.

State of Nevada, County of Humboldt--ss.:

On this 17th day of July, A. D. 1908, before me, W. S. Bonnifield, Jr., a notary public in and for the county of Humboldt, state of Nevada, personally appeared Geo. S. Nixon, known to me to be the person described in and who executed the annexed instrument and who personally acknowledged to me that he, said Geo. S. Nixon, executed the same freely and voluntarily, and for the uses and purposes therein mentioned.

In witness whereof I have hereunto set my hand and official seal the day and year in this certificate first above written.

[Notarial Seal.] W. S. Bonnifield, Jr.,

Notary Public."

George S. Nixon, at the time of the execution and delivery of the instrument, was married to Kate I. Nixon, one of the respondents, the marriage having been solemnized January 30, 1887, at Humboldt, Nev. As a result of this union a son was born, as near as can be ascertained from the record, during the year 1888, to wit, Bertram E. Nixon, also a respondent in the action. George S. Nixon and Kate I. Nixon were living together as husband and wife at the time the instrument in question was executed, and it appears from the record that there never had been any agreement or settlement concerning property rights between them during the life of the former, and that the union in all respects was a happy one. It is admitted that the property conveyed by the deed of trust was community property, not a portion of a homestead; and that the wife never signed or otherwise consented in writing to the conveyance. Senator Nixon and his family resided for many years in Winnemucca, and were widely known and acquainted in that community. On the evening of April 20, 1907, at a farewell reception in the town of Winnemucca, given by the senator and his wife, the senator announced his intention to build and present to the town of Winnemucca an opera house. The corner stone of the structure was laid September 14, 1907, and was made the occasion of public exercises, at which Mrs. Nixon was present, Senator Nixon being absent. The structure was formally presented to the town July 17, 1908, the presentation having been made in the building itself. Senator Nixon made the presentation speech, and his wife was present and among those seated on the stage during the ceremonies. The conveyance above set forth was delivered to and accepted by the trustees at the time, and shortly thereafter was recorded in the office of the county recorder. Mrs. Nixon and Bertram Nixon during the early part of the evening assisted in receiving and welcoming the guests upon their arrival. The occasion was a public one. The cost of erecting and equipping the building and the premises upon which it is situate was about $50,000. Senator Nixon's wealth at the time of making the gift was estimated at between three and five million dollars, and at the time of his death he was admitted to be a millionaire. His death occurred June 5, 1912, and this action was commenced in the court below May 31, 1917.

Senator Nixon died testate, leaving surviving him the said Kate I. Nixon, his wife, and Bertram Nixon, his son. He disposed of his interest in the community property and all other property in trust, naming the Bank of Nevada Savings & Trust Company trustee, by the terms of which certain annuities were to be paid, the said Bertram Nixon to receive all the rest, residue, and remainder of the property of the estate upon his attaining the age of 35 years, subject to the further provision that, if the said Bertram Nixon should die before he arrived at the age of 35 years, the rest and residue and remainder of said estate should then go to Kate I. Nixon, and be added to her interest in the community property. Prior to the commencement of this action the property was distributed to the Nixon Estate Company (substituted for the Bank of Nevada Savings & Trust Company), subject to the terms, conditions, and provisions of the trust created by the will.

Respondents by their petition below sought to have the instrument in question set aside: First, upon the theory that in this state a husband cannot make a gift from the community property unless the wife joins in the conveyance, so as to preclude her from thereafter attacking the validity of the instrument second, that by the terms of said instrument, the trust created, if otherwise valid, was in law a private trust in perpetuity, prohibited by article 15, § 4, of the Constitution of the state of Nevada, and therefore void. Appellants by their answer denied the contention of pla...