Sutherland v. Selling

• Decision Date: 20 December 1926
• Docket Number: No. 4980.,4980.
• Parties: SUTHERLAND, Alien Property Custodian, et al. v. SELLING et al.
• Court: U.S. Court of Appeals — Ninth Circuit

16 F.2d 865 (1926)

SUTHERLAND, Alien Property Custodian, et al. v. SELLING et al.^*

No. 4980.

Circuit Court of Appeals, Ninth Circuit.

December 20, 1926.

E. W. Wickey, of Washington, D. C., Thomas Mannix, and Guy C. H. Corliss, both of Portland, Or., for appellants.

Joseph, Haney & Littlefield and John C. Veatch, all of Portland, Or., for appellees.

Before GILBERT and RUDKIN, Circuit Judges, and JAMES, District Judge.

RUDKIN, Circuit Judge.

This was a suit by the Alien Property Custodian and the E. Henry Wemme Company, a corporation organized and existing under the laws of the state of Oregon, against the trustees of the E. Henry Wemme Endowment Fund, a corporation organized and existing under the laws of the state of Oregon, the E. Henry Wemme Endowment Fund as such corporation, the Attorney General of the state of Oregon, and the district attorney of Multnomah county, state of Oregon, to recover certain propery devised in trust by E. Henry Wemme, deceased, and for an accounting.

E. Henry Wemme died testate at Portland, Or., December 17, 1914. At the time of his death his estate consisted largely of the capital stock of the E. Henry Wemme Company, and of certain real property in the city of Portland. The stock in the corporation was bequeathed to relatives, a majority of whom lived in Germany, and became alien enemies upon our entry into the World War. The real property in Portland, of the value of $350,000, was devised to trustees in trust for the following uses and purposes:

"Sixth: I give, devise and bequeath unto H. A. Weis, Jessie M. Carson and J. J. Cole and their successors, lots 1, 4, 5 and 8 in block 53 in Couch's addition to the city of Portland and also lots 1 & 4 and the south 20 feet of lot 5 in block 9 of Couch's addition to the city of Portland and the south 120 feet of block 72 in East Portland, now a part of Portland, and all now being in the city of Portland, Multnomah county, state of Oregon, to be in trust, however, by said H. A. Weis, Jessie M. Carson and J. J. Cole and their successors for the use and purposes hereinafter set forth as follows: Said trustees and their successors shall have power and authority to hold, manage, improve, repair or lease said property or any part thereof without any other authorization than that hereby given, and shall collect all rents, issues and profits arising from said property and shall from such rents, issues and profits first pay all taxes, assessments and charges of whatsoever kind or nature lawfully made against said property, or any part thereof.

"My said trustees shall immediately after my death cause to be formed a corporation under the name of `E. Henry Wemme Endowment Fund' under and by virtue of the laws of the state of Oregon, providing that the duration of said corporation shall be perpetual, that its principal office and place of business shall be in the city of Portland, county of Multnomah and state of Oregon, with a capital stock to be determined by my trustees, not to exceed, however, the reasonable value of the property hereinbefore devised to my trustees, at the time of such incorporation, and incorporated for the purpose of buying, owning, holding, managing, improving, mortgaging and leasing the real property hereinbefore devised to my trustees, and for the purpose of conducting a maternity home or laying-in hospital for unfortunate and wayward girls in the city of Portland, Multnomah county and state of Oregon.

"My said trustees shall jointly subscribe for all of the capital stock of said corporation, and shall thereupon complete the organization of such corporation and cause such action to be taken by it that it shall purchase of my said trustees all of said property hereinbefore devised to my trustees, and in payment therefor issue its capital stock to my said trustees, jointly, and thereupon said trustees shall by good and sufficient conveyance or conveyances grant, bargain, sell and convey to said E. Henry Wemme Endowment Fund a corporation, all of the real property hereinbefore devised to said trustees, and thereupon the capital stock of said corporation of E. Henry Wemme Endowment Fund shall be issued to said trustees jointly in one certificate, which capital stock witnessed by said certificate shall be held in trust by said trustees, and disposed of by them as hereinafter directed.

"Immediately upon the completion of the organization of said E. Henry Wemme Endowment Fund, and the transfer to said corporation last mentioned of the property herein devised to my trustees, then and thereupon said corporation shall have the right to borrow a sum of money not to exceed $75,000.00 upon the promissory note of said corporation, and to secure the payment of such promissory note by mortgage executed by it covering lots 1 and 4 and the south 20 feet of lot 5 in block 9 of Couch's addition to the city of Portland, in Multnomah county, state of Oregon, said promissory note and mortgage shall contain such provisions and conditions as may be determined and agreed upon by said corporation and the person, firm or corporation from whom it may secure such loan.

"After securing money on the mortgage hereinbefore provided to be executed by it the said E. Henry Wemme Endowment Fund shall proceed to purchase suitable real estate as a site for a maternity home for unfortunate and wayward girls, and shall construct thereupon a suitable home for the reception, accommodation, care, treatment and comfort of unfortunate and wayward girls, who may be in need thereof, and shall furnish, equip and maintain such maternity home without cost or charge to the inmates thereof, but shall use the rents, issues and profits arising and issuing out of the property owned by said E. Henry Wemme Endowment Fund, in maintaining, furnishing and equipping said maternity home, and in caring for and providing for the inmates thereof, making a provision, however, should the said corporation deem it necessary, for a sinking fund from such rents, issues and profits to pay out thereof, when it shall have become due said note given by the corporation as hereinbefore provided. Said maternity home shall be known as the White Shield of Portland, Oregon, and the inmates shall be admitted thereto irrespective of religion or nationality.

"Said corporation by and through my said trustees who shall constitute the board of directors thereof, shall after the construction of said home open and thereafter conduct the same for the accommodation, care and keeping of unfortunate and wayward girls as a lying-in hospital without charge therefor.

"In case of the death, resignation or permanent inability of any or...