California.

The codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) online

. (page 47 of 156)
Online LibraryCaliforniaThe codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) → online text (page 47 of 156)
Font size
QR-code for this ebook


co-trustees. — See 4 A. C. 953.

Same— To expend principal of trust fund. — See 8 A. C. 1176.

Same — To mortgage trust estate for purposes of improve-
ments so as to render the estate productive. — See L. N. S. 263.

Same — To mortgage trust property. — See 1 A. C. 942; 9 A. C.
643; 10 A. C. 245.

Same — Under control to make a ninety-year lease of the trust
realty. — See 2 A. C. 787.

Powers, duties and liabilities of trustees, generally, see 4 L.
529; 7 L. 570; 9 L. 279; 13 L. 212; 27 L. 821; 29 L. 622; 51 L. 486;
57 L. 688; 63 L. 227.

Precatory trusts, when created. — See 44 A. D. 372; 106 A. S.
499; 6 L. 353; 7 L. 394; 7 L. 519; 13 L. 563.

Provision against alienation of cestui que trust. — See 2 L. 113.

Revocation of deed of trust, power of. — See 20 A. S. 858.

Rights — Of beneficiaries. — See 2 Obiter Dig, 884, 885.

Same — Of cestui que trust as to trust property mingled with
that of insolvent trustee. — See 7 A. C. 553.

Same — Of trustee — Compensation and indemnity. — See 2 Obiter
Dig. 884.

Sales and conveyances by trustees. — See 19 A. S. 266.

Same — Under powers in trust deeds to secure money. — See 92
A. S. 573.

Same — When power of vests in trustee by implication. — See
87 A. D. 209.

Severability of trusts from perpetuities and forbidden trusts. —
See 64 A. S. 634.

Statute — Of limitations as affecting. — See 27 A. S. 473; 2
Obiter Dig. 882; 8 W. & P. 7124.

Same — Regulating uses and trusts. — See 4 L. 140.

Sufficiency of declaration to establish voluntary trust where
legal title is retained by trustor. — See 12 L. N. S. 547;

Suitability of trustees. — See 2 Obiter Dig. 888.

Taxation of trust property, place of. — See 20 L. 151.

Termination and revocation of. — See 1 L. 319; 1 L. 328; 8 L.
480; 18 L. 745.

Same — Power to revoke or set aside voluntary. — See 15 L. 75.

Termination of trust and presumption of conveyance by
trustee to beneficiary. — See 58 A. D. 472.

To whom property passes on trustee's death. — See 1 L. 334.

546



Tit. IV.] USES AND TRUSTS. §§ 848-850

Trustee ex maleflcio.— See 2 Obiter Dig. 881.

Trusts — For absent persons and those not in being. — See 2
Obiter Dig. 881.

Same — Within the rule against perpetuities. — See 49 A. S. 128.

Use distinguished. — See 8 W. & P. 7123.

Uses and trusts, statute regulating. — See 4 L. 140.

Validity of acknowledgment of deed of, taken by trustee. —
See 16 L. 719.

Voluntary trusts arising from the declaration of trustor.—
See 34 A. S. 189.

When legal estate vests in beneficiary under the statute of
uses. — See 78 A. D. 416.

Where trustee's sale to be made. — See 33 L. 96.

Who are or may be trustees and removal thereof. — See 1 L.
79; 8 L. 648; 11 L. 715; 14 L. 69; 16 L. 695; 24 L. 291; 48 L. 593.

Who may be appointed trustee by donee of power to appoint.
—See 4 A. C. 405.

§848. RIGHT TO POSSESSION OF LAND CREATES
LEGAL OWNERSHIP (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 221.

132 C. 523, 535, 84 A. S. 70, 60 P. 442, 64 P. 1000 (repealed —
wording of section).

As to trusts under wills, see 2 Church's New Probate Law and
Practice, 1427-1433.

As to uses and trusts generally, see note § 847 ante.

§849. CERTAIN TRUSTS UNAFFECTED (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 221.

132 C. 523, 535, 84 A. S. 70, 60 P. 442, 64 P. 1000 (repealed —
referred to same subject as § 848.)

As to trusts under wills, see 2 Church's New Probate Law and
Practice, 1427-1433.

As to uses and trusts generally, see note § 847, ante.

§ 850. TRUSTEES OF ESTATE FOR USE OF ANOTHER
TAKE NO INTEREST (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 221.

132 C. 523, 535, 84 A. S. 70, 60 P. 442, 64 P. 1000 (repealed —
referred to same subject as § 848.)

547



§§851,852 CIVIL CODE. [Div.II.Pt.II.

As to trusts under wills, see 2 Church's New Probate Law and
Practice, 1427-1433.

As to uses and trusts generally, see note § 847, ante.

§851. PRECEDING SECTIONS QUALIFIED (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 221.

182 d'"523, 535, 84 A. S. 70, 60 P. 442, 64 P. 1000 (repealed —
referred to same subject as § 848).

As to trusts under wills see 2 Church's New Probate Law and
Practice, 1427-1433.

As to uses and trusts generally, see note § 847, ante.

§ 852. TRUST MUST BE IN WRITING. No trust in rela-
tion to real property is valid unless created or declared:

1. By a written instrument, subscribed by the trustee, or
by his agent thereto authorized by writing;

2. By the instrument under which the trustee claims the
estate affected; or,

3. By operation of law.

History: Enacted March 21, 1872.

See Kerr's Cyc. C. C. for 411 pars, annotation.

58 C. 457, 483 (construed and applied); 70 C. 449, 452, 11 P.
659, 661 (construed and applied in connection with other sec-
tions); 16 P. 535, 537 (construed and applied); 75 C. 525, 526,
7 A. S. 189, 17 P. 689, 690 (construed and applied); 76 C. 469, 471,
9 A. S. 242, 18 P. 429, 430 (construed and applied in connection
with other sections); 80 C. 514, 518 (applied but miscited as
§853), 22 P. 294, 295 (correct citation); 85 C. 436, 446, 25 P. 22,
23, 24 (construed and applied with § 853); 88 C. 560, 565 (applied
but erroneously cited as §82), 26 P. 367, 368 (correct citation);
90 C. 603, 607, 27 P. 516, 517 (construed and applied); 94 C. 69, 72.
29 P. 487 (construed); 31 P. 355, 357 (construed and applied);
97 C, 259, 261, 32 P. 171 (construed and applied in connection
with other sections); 99 C. 311, 314, 33 P. 929 (applied); 108 C.
627, 656, 49 A. S. 97, 41 P. 772 (referred to in discussion); 110 C.
1, 5, 42 P. 300 (referred to); 112 C. 279, 284, 44 P. 565 (con-
strued and applied); 118 C. 102, 107, 50 P. 386 (applied); 122
C, 19, 25, 54 P. 370 (referred to — trust in personal property need
not be in writing — ^No set form of words is necessary to create
trust); 122 C. 426, 427, 55 P. 143 (applied); 124 C. 418, 421, 57
P. 219 (construed and applied with other sections); 126 C. 189,
192, 58 P. 543 (construed and applied); 132 C. 21, 27, 63 P. 1071

548



II



Tit. IV.] CREATION OP TRUST. § 852

(construed and applied); 135 C. 277, 279, 67 P. 129 (referred to
in discussion); 136 C. 92, 96, 68 P. 482 (construed and applied);
136 C. 153, 155, 68 P. 579 (applied); 136 C. 631, 634, 69 P. 428
(construed); 147 C. 384, 389, 81 P. 1077 (referred to — what ex-
press trusts are not mortg-ages) ; 150 C. 710, 713, 89 P. 971
(lias no application to resulting trusts — they may be estalilished
by parol); 127 U. S. 300, 312, 32 L. ed. 138, 143 (this and various
other sections construed tog'ether as merely declaratory of pre-
existing law).

As to acceptance of trust by beneficiary, see 46 A. D. 81;
34 A. S. 214; 28 Encyc. L. 895.

As to admissibility of parol evidence in express or resulting
trusts, see 10 L. 401; 24 A. D. 413-417; 26 A. D. 60; 36 A. D.
182; 38 A. D. 182; 43 A. D. 624; 63 A. D. 42; 70 A. D. 258; 90
A. D. 270; 82 A. S. 517.

As to certainty in the subject-matter of precatory trusts, see
44 A. D. 372, 376.

As to certainty of the objects or persons to be benefited by
precatory words, see 44 A. D. 372, 377.

As to creation of express trusts, see 1 L. 327; 11 L. 456; 12
L. 667; 31 A. R. 453-455; 34 A. S. 216; 82 A. S. 513.

As to the creation of resulting trusts, see 2 L. 146.

As to declarations of trusts, see Kerr's Cyc. C. C. § 2253 and
note.

As to designation of beneficiaries, see 61 A. S. 623.

As to effect of depositing' money in bank in trust for third
person, see 32 L. 373-375; 33 L. 700; 39 L. 800; 44 L. 205.

As to how far parol trusts are within the statute of frauds,
see 10 L. 401.

As to intention in the creation of precatory trusts, see Kerr's
Cyc. C. C. § 852, note pars. 254-259.

See post § 2221 note pars. 25-28.

As to letters admitted to prove trust, see Kerr's Cyc. C. C.
§ 852, note pars. 146, 147 this note.

As to letters not sufficient to create, see Kerr's Cyc. C. C.
§ 852, note par. 211.

As to manifestation of fact of creation and of nature of
trust by writing, see Kerr's Cyc. C. C. § 852, note pars. 144,
145; also §§ 2215-2217 and notes.

As to necessity of consideration in creation of trusts, see
11 L. 456.

As to notification of beneficiaries, see 28 Encyc. L. 895.

As to parol trust and requirement of writing', see 28 Encj'c.
L. 869, 877.

As to parol trust of in land, see Kerr's Cj'c. C. C. § 852, note
pars. 100-112.

As to resulting trusts arising from fraud, undue influence,
etc., see Kerr's Cyc. C. C. § 2224 and note.

549



§ 852 CIVIL CODE. [Div.II.Pt.II.

As to resulting trusts in favor of purchaser or person pay-
ing purcliase money, see Kerr's Cyc. C. C. § 1853 and note.

As to right to follow trust fund, see Kerr's Cyc. C. C. §§ 2229.
2236 and notes.

As to right to use of trust property as his own, and mingling
with his own, see Kerr's Cyc. C. C. §§ 2229, 2236 and notes.

As to trust in deposit in insolvent bank, see 34 L. 532-537.

As to trust in favor of party paying purchase money, see
Kerr's ^Cyc. C. C. §853 and note.

As to trust in partnership real estate, see Kerr's Cyc. C. C.
§ 853 and note.

As to trusts arising from fraud, etc., see Kerr's Cyc. C. C.
§ 2224 and note.

As to trusts created by fraud, etc., see Kerr's Cj'c. C. C.
§ 2224 and note.

As to trusts created in favor of party paying purchase
money, see Kerr's Cyc. C. C. § 853 and note.

As to trusts created through fraud, etc., see Kerr's Cyc.
C. C. § 2224 and note.

As to trusts implied to effectuate the purpose of a contract
when its terms cannot be given effect to, see 58 L.. 115.

As to trusts in favor of party advancing purchase money, see
Kerr's Cyc. C. C. § 853 and note.

As to trusts in partnership real estate, see Kerr's Cyc. C. C.
§ 853 and note.

As to trusts obtained by fraud, etc., see Kerr's Cyc. C. C.
§ 2224 and note.

As to trusts under wills, see 2 Church's New Probate Law
and Practice, 1427-1433.

As to trusts where one has more than his share, see Kerr's
Cyc. C. C. § 853 and note.

As to uses and trusts generally, see note § 847, ante.

As to what constitutes declaration of trxist, see Kerr's Cyc.
C. C. § 2253 and note.

As to what words do or do not create precatory trust, see
44 A. D. 372, 379; 33 A. R. 293; 48 A. R. 494, 499; 6 L. 354.

As to when constructive trusts arise, see 5 L. 189.

As to when precatory trust arises in favor of children, see
48 A. R. 494, 499.

As to when real estate will be considered partnership prop-
erty and as to when resulting and implied trusts are created
in the purchase of such property, see 27 L. 449-497.

For the earlier American cases on the subject of precatory
trusts, see 44 A. D. 372, 377.

For the later American and Englisli cases on precatory
trusts, see 44 A. D. 372, 379.

550



II



Tit. IV.] TRUST PRESUMED, WHEN. § 353

§8o3. TRANSFER TO OJfE FOR MONET PAID BY
ANOTHER. [TRUST PRESUMED.] When a transfer of
real property is made to one person, and the consideration
therefor is paid by or for another, a trust is presumed to
result in favor of the person by or for whom such payment
is made.

History: Enacted March 21, 1S72; amended March 30, 1874,
Code Amdts. 1873-4, p. 221.

See Kerr's Cyc. C. C. for 118 pars, annotation.

67 C. 255, 256, 7 P. 676, 677 (applied); 67 C. 325, 327, 7 P.
741 (construed and applied); 68 C. 116, 120, 122, 8 P. 804 (ap-
plied); 74 C. 85, 91, 15 P. 439, 442 (applied but miscited as
§353); 75 C. 166, 170, 16 P. 766, 768 (applied); 77 C. 330, 338,
19 P. 513, 516 (applied); 80 C. 514, 518 (erroneously cited fof
§852), 22 P. 294, 295 (correct citation); 85 C. 436, 446, 25 P.
22, 23, 24 (construed and applied); 92 C. 9, 13, 28 P. 50, 51
(applied); 122 C. 114, 116, 54 P. 536 (applied); 127 C. 245, 247,
59 P. 699 (construed and applied); 132 C. 21, 28, 63 P. 1071
(applied); 134 C. 603, 605, 65 P. 321, 66 P. 860 (applied); 136
C. 92, 95, 96, 68 P. 482 (construed and applied); 136 C. 460,
463, 69 P. 83 (applied with other sections); 138 C. 564, 569,
72 P. 178 (payment of purchase price by one and transfer
to another establishes a "resulting trust"); 142 C. 59, 69, 75
P. 649 (referred to); 144 C. 329, 334, 77 P. 937 (applied); 144

C. 528, 533, 534, 78 P. 25 (construed and applied); 146 C. 134,
137, 79 P. 843 (establishment of resulting trust by parol not-
withstanding recital of money consideration — cases where
trusts sought to be established were in favor of grantor dis-
tinguished) ; 2 C. A. 479, 483, 84 P. 326 (applied); 3 C. A. 493,
495, 86 P. 618 (applied — constructive trust arising from fraud);
7 C. A. 429, 431, 94 P. 591 (referred to— gifts to another man's
wife).

As to agreement to purchase on joint account and enforce-
ment of trust in favor of party paying purchase money, see
note 2 John. Ch. (N. Y.) 405, bk. 1 L. ed. 428.

As to disproving payment of consideration to create result-
ing trust in favor of grantor, see 90 A. D. 277.

As to exception of implied trust from statute of frauds, see
9 A. S. 530.

As to nature of evidence to prove resulting trust, see 98 A.

D. 311.

As to parol evidence to prove resulting trust, see note 2
John. Ch. (N. T.) 404, bk. 1 L. ed. 426.

As to parol evidence to show resulting trust, see 65 A. D.
182.

551



§§ 854-856 CIVIL CODE. [Div.II.Pt.II.

As to presumption arising from paymont of purcViase money,
see 50 A. D. 624, 51 A. D. 753.

As to resulting trust from purcliase agent, see note 2 John.
Ch. (N. Y.) 404, bk. 1 L. ed. 426.

As to resulting trust from purchase in name of wife or
son, see 51 A. D. 754.

As to resulting trust in land purchased by anotlier, see note
2 John. Ch. (N. Y.) 404, bk. 1 L. ed. 426.

As to resulting trust in purchase with partnership funds,
see note 2 John. Ch. (N. Y.) 404, bk. 1 L. ed. 426; and 27 L.
449-497.

As to resulting trusts arising from purchase by partner of
real estate in his own name with partnership funds, see 27
L. 449-497.

As to resulting trusts from advancing purchase money, con-
vej'^ance without consideration or part payment of considera-
tion, see 51 A. D. 752-758.

As to resulting trusts in general, see Kerr's Cyc. C. C. § 852
and note.

As to resulting trusts where land is purchased by an agent
and deed taken in his own name, see 9 A. S. 530.

As to resulting trusts where several persons furnish pur-
chase money, see 50 A. D. 724. See Kerr's Cyc. C. C. § 2217
and note.

As to trusts under wills, see 2 Churcli's New Probate Law
and Practice, 1427-1433.

As to uses and trusts generally, see note § 487, ante.

§854. RIGHTS OF CREDITORS (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 221.

See Kerr's Cyc. C. C. for 2 pars, annotewtion.

As to uses and trusts generally, see note § 847, ante.

§855. SECTION EIGHT HUNDRED AND FIFTY-THREE
QUALIFIED (repealed).

History: Enacted March 21, 1872; repealed March 30, 1874,
Code Amdts. 1873-4, p. 221.

§ 856. PURCHASERS PROTECTED. No implied or result-
ing trust can prejudice the rights of a purchaser or encum-
brancer of real property for value and without notice of the
trust.

History: Enacted March 21, 1872.
552



A



'!> Tit. IV.] EXPRESS TRUST, PURPOSES. § 857

See Kerr's Cyc. C. C. for 83 pars, annotation.

74 C. 85, 91, 15 P. 439, 442 (construed and applied); 96 C.
298, 307, 31 A. S. 209, 31 P. 166 (construed and applied with
other sections); 115 C. 330, 335, 42 P. 418, 47 P. 52 (construed
and applied); 128 C. 362, 365, 60 P. 925, 926 (construed and
applied).

As to application of maxim caveat emptor, see 61 A. D. 353,
90 A. D. 424.

As to constructive notice, see Kerr's Cyc. C. C. § 19 and note.

As to conveyajice by trustee and its effect, see 64 A. D. 199.

As to duty to make inquiry, see Kerr's Cyc. C. C. § 19 and note
pars. 10-27.

As to how far bona fide purchaser from trustee is pro-
tected, see 47 A. D. 637.

As to position of purchasers from trustees with or without
notice of trust, see 63 A. S. 469, and Kerr's Cyc. C. C. § 869
and note.

As to receiving trust property with notice, see 2 L. 481.

As to sales and conveyances by trustees, see 19 A. S. 266.

As to trusts under wills, see 2 Church's New Probate Law
and Practice, 1427-1433.

As to uses and trusts generally, see note § 487, ante.

As to when purchaser of trust property is chargeable with
trust, see 32 A. D. 705, 40 A. D. 210, 212.

As to when sales or transfers bj^ trustee are void, see Kerr's
Cyc. C. C. § 870 and note.



§857. FOR WHAT PURPOSES EXPRESS TRUSTS MAY

BE CREATED. Express trusts may be created for any of the
following purposes:

1. To sell real property, and apply or dispose of the pro-
ceeds in accordance with the instrument creating the trust.

2. To mortgage or lease real property for the benefit of
annuitants or other legatees, or for the purpose of satisfying
any charge thereon.

3. To receive the rents and profits of real property, and
pay them to or apply them to the use of any person, whether
ascertained at the time of the creation of the trust or not,
for himself or for his family, during the life of such person,
or for any shorter term, subject to the rules of title two of
this part; or,

4. To recelye the rents and profits of real property, and to

553



§ 857 CIVIL CODE. [Div.II.Pt.TI.

accumulate the same for purposes and within the limits pre-
scribed by the same title.

HlHtory: Enacted March 21, 1872; amended March 30, 1874,
Code Amdts. 1873-4, pp. 221-222.

See Kerr's Cyc. C. C. for 63 pars, annotation.

58 C. 457, 478, 481, 483 (construed and applied witli otlier
section^: — ^express trusts are put In opposition to resulting:
trusts); 76 C. 136, 144, 9 A. S. 177. 18 P. 146.' 150 (construed
and applied); 79 C. 65, 67, 21 P. 545 (applied — express trust to
collect and apply rents of real estate); 80 C. 237. 242, 22 P.
167, 169 (construed and applied): 85 C. 488, 506, 24 P. 930. 934
(applied with other sections); 107 C. 587, 595. 596, 40 P. 810
(construed and applied with other sections); 108 C. 627, 644,
646. 648. 656. 49 A. S. 97. 41 P. 772 (applied with other sec-
tions); 109 C. 323, 330, 50 A. S. 43. 41 P. 1089 (applied with
other sections); 116 C. 405. 409, 48 P. 622 (no trust can be
created to sell realty for benefit of legatees); 121 C. 379. 382,
385, 53 P. 813 (applied with other sections — trust deeds with
power of sale, as security, are authorized by this section);
123 C. 140. 144, 55 P. 681 (applied); 124 C. 418. 420. 421, 57
P. 219 (applied with other sections); 124 C. 495. 497. 57 P. 381
(referred to in discussion); 130 C. 128. 134. 135. 62 P. 401 (con-
strued and applied); 132 C. 523. 527, 528. 559. 564. 567. 84 A. S.
70, 60 P. 442. 64 P. 1000 (construed and applied with other
sections); 132 C. 621, 623. 624. 625. 626. 84 A. S. 118, 64 P. 997,
998 (various subdivisions construed and applied — trust not
authorized by this section, such as one by deed to hold for
use of grantor, is void); 133 C. 420. 423, 65 V. 952 (construed
and applied); 135 C. 277. 279. 67 P. 129 (construed and applied
with other sections); 136 C. 97. 102, 103, 68 P. 494 (construed
and applied); 136 C. 153. 155. 68 P. 579 (construed and applied
with other sections); 139 C. 682. 685. 73 P. 604, 606 (construed
and applied); 140 C. 48. 52. 73 P. 748 (trust In will to transfer
and convey, is void as to real property); 146 C. 745, 747, 81
P. 138 (trust to lease property, collect rents, and to pay over
rentals is valid); 147 C. 95, 102. 103, 81 P. 315 (subd. 3 applied);
147 C. 384, 389, 81 P. 1077 (referred to — what express trusts are
not mortgages); 148 C. 184, 187. 189. 190, 193, 82 P. 755 (power
conferred upon trustees to "manage" trust property does not
violate this section); 149 C. 200. 205. 85 P. 147 (what trust
created by will Is within section); 149 C. 667. 675. 87 P. 276
(referred to); 150 C. 214, 227, 88 P. 920 (referred to); 3 C. A.
741. 747, 86 P. 1108 (subd. 3 referred to — competency of Masonic
lodge to take as trustee); 4 C. A. 593, 596. 88 P. 646 (applied-
trust Invalid for want of certainty); 11 F. 253, 261 (.npplie.l

654



Tit. IV.] MORTGAGE POWERS— PROFITS. §§858,859

with other sections to conveyance in trust to secure railway
mortgage bonds); 86 F. 975, 976 (subd. 1 applied).

As to trusts for accumulation of income, see Kerr's Cyc. C.
C. § 724 and note.

As to trusts for creditors, see 34 A. S. 219.

As to trusts under wills, see 2 Church's New Probate Law
and Practice, 1427, 1433.

As to uses and trusts generally', see note § 847, ante.



§858. VESTING OF MORTGAGE POWERS. Where a
power to sell real property is given to a mortgagee, or other
encumbrancer, in an instrument intended to secure the pay-
ment of money, the power is to be deemed a part of the
security, and vests in any person who, by assignment,
becomes entitled to the money so secured to be paid, and
may be executed by him whenever the assignment is duly
acknowledged and recorded.

History: Enacted March 21, 1872; original provision repealed
and above provision substituted therefor by Act March 30,
1874, Code Amdts. 1873-4, p. 222. The above section a re-enact-
ment of section 895 post (repealed). — See 132 C. 523, 557, 84 A.
a. 70, 60 P. 442, 64 P. 1000.

See Kerr's Cyc. C. C. for 17 pars, annotation.

121 C. 379, 384, 53 P. 813 (construed and applied with other
sections); 132 C. 523, 557, 84 A. S. 70, 60 P. 442, 64 P. 1000
(construed and applied in dis. op. with other sections) ; 7 C. A.
413, 416, 417, 94 P. 400 (rights of transferee of negotiable
promissory note, payment of which is secured by deed of trust
whereby title to property and power of sale in case of default
is vested in third party as trustee).

As to trusts under wills, see 2 Church's New Probate Law
and Practice, 1427, 1433.

As to uses and trusts generally, see note § 847, ante.

§859. PROFITS OF LAND LIABLE TO CREDITORS IN
CERTAIN CASES. Where a trust is created to receive the
rents and profits of real property, and no valid direction for
accumulation is given, the surplus of such rents and profits,
beyond the sum that may be necessary for the education and
support of the person for whose benefit the trust is created,
is liable to the claims of the creditors of such person, in the

555



§ 860 CIVIL CODE. [Div.II.Pt.II.

same manner as personal property which cannot be reached
by execution.

History: Enacted March 21, 1872; amended by Code Com-
mission, Act Marcli 16, 1901, Stats, and Amdts. 1900-1, p. 394,
held unconstitutional, see history, § 4 ante. This section is
taken from 1 N. Y. Rev. Stats. 729, § 57, which has received
construction in 42 Hun (N. Y.) 636. See 139 C. 640, 642, 73
P. 585. ■ ■

See Kerr's Cyc. C. C. for 15 pars, annotation.

139 C. 640, 641, 73 P. 585 (construed and applied).

As to inalienability of trust estates, see note 1 Barb. Ch.
(N. Y.) 34, bk. 5 L. ed. 288.

As to power of married woman to charge separate estate
created for her benefit, see note 1 Barb. Ch. (N. Y.) 34 bk. 5 L.
ed. 288.

As to right of creditor to her surplus income of judgment
debtor, see note 2 Barb. Ch. (N. Y.) 79, bk. 5 L. ed. 564.

As to trusts under wills, see 2 Cliurch's New Probate Law
and Practice, 1427, 1433.

As to uses and trusts generally, see note § 847, ante.

As to validity of trusts to pay over rents and profits and
rights of creditors to reach same, see note 8 Paige Ch. (N. Y.)
83, bk. 4 L. ed. 353.



§ 860. EXERCISE OF VESTED POWER. Where a power
is vested in several persons, all must unite in its execution;
but, in case any one or more of them is dead, the power may
be executed by the survivor or survivors, unless otherwise
prescribed by the terms of the power.

History: Enacted March 21, 1872; original section repealed
and above provision substituted therefor by Act March 30,
1874, Code Amdts. 1873-4, p. 222. The above section a verbatim
re-enactment of section 900 post (repealed). See 132 C. 523,
557, 84 A. S. 70, 60 P. 442, 64 P. 1000.

See Kerr's Cyc. C. C. for 5 pars, annotation.

132 C. 523, 537, 552, 557, 558, 84 A. S. 70, 60 P. 442, 64 P.
1000 (construed with other sections).

As to conveyance by one of several, see 64 A. D. 201.

As to trusts under wills, see 2 Church's New Probate Law
and Practice, 1427, 1433.

As to uses and trusts generally, see note § 847, ante.

As to when majority of trustees may act, see 11 A. D. 674.



Online LibraryCaliforniaThe codes of California as amended and in force at the close of the thirty-eighth session of the Legislature, 1909 (Volume 2 Civil Code) → online text (page 47 of 156)