*

*

which is furnished by the writing itself. The terms "steers" was used, by applying it to writing, it is true, may be read by the light the subject-matter and the situation of the of surrounding circumstances in order more parties at the time of making the contract, perfectly to understand the intent and in order that its enforcement might be in meaning of the parties; but, as they have accordance with the understanding of the constituted the writing to be the only out-parties to it. ward and visible expression of their mean- The court instructed the jury that, if they ing, no other words are to be added to it found the plaintiffs, in order to obtain posor substituted in its stead." 1 Greenl. Ev. session of the property mentioned in the § 277. The same author says: "If the lan- contract, were compelled when making the guage of the instrument is applicable to final payment to pay for any property to several persons, to several parcels of land, which they were entitled, but which was to several species of goods, to several mon- not delivered to them, such payment was uments or boundaries, to several writings, in law a payment under duress, and might or the terms be vague and general, or have be recovered back. The giving of this indivers meanings, * in all these and struction is assigned as error. Counsel for the like cases parol evidence is admissible defendants insist that, as plaintiffs knew of any extrinsic circumstances tending to when they made the final payment that all show what person or persons, or what the property which they claim should have things, were intended by the party, or to as- been delivered to them was not delivered, certain his meaning in any other respect." the payment was voluntarily made, with Id. § 288. Thus, where the agreement was for full knowledge of all the facts, and hence a certain number of casks of black lead, was not a payment under duress. The parol evidence was held admissible to show court stated the law correctly. In Baldwhat kind of casks was intended. Keller v. win v. Steamship Co., 74 N. Y. 125, the deWebb, 125 Mass. 88. So parol evidence may fendants, as common carriers, transported be introduced to show what persons were certain boxes from New York to London meant by the designation of" Horace Gray for a stipulated sum, but, upon learning and others" in a written agreement. Her- that the contents of the boxes were of ring v. Iron Co., 1 Gray, 134. And in a con- much greater value than they supposed tract for extending the time of payment of when they received them for shipment, re"certain notes" held by one party against fused to deliver them to the consignee withthe other parol evidence was held admissible out the payment of an additional sum, to show what notes were so held and intend- which was accordingly paid, and it was ed. Bell v. Martin, 18 N. J. Law, 167. So, in a held that the money so paid could be rewritten agreement to pay a party $1,700, in covered back as having been paid under lawful currency of the United States, in duress of goods. In Harmony v. Bingham, an order on W. & T., parol evidence was 12 N. Y. 99, a common carrier, having in his held admissible to show that the order was possession a large amount of valuable merto be for sash and blinds, and not for mon-chandise, exacted for freight more than was ey. Hinnemann v. Rosenback, 39 N. Y. 98. due as a condition of its delivery to the See, also, to the same effect, 2 Pars. Cont. owner, and the latter, to obtain possession (5th Ed.) 549; Bancroft v. Grover, 23 Wis. of the property, paid the amount wrong463; Ball v. Benjamin, 73 III. 39; Pinney v. fully demanded under protest, and it was Thompson, 3 Iowa, 74; Pierce v. Parker, 4 held that it was not a voluntary payment, Metc. 80; Reed v. Insurance Co., 95 U. S. 23; and he could recover it back. In Stenton Montelius v. Atherton, 6 Colo. 224. Under v. Jerome, 54 N. Y. 480, the defendants, who the contract with the defendants the plain- were stock-brokers, held two United States tiffs bought, and were entitled to have de- bonds belonging to the plaintiff, which livered to them, all the cattle of whatsoever they threatened to sell unless she paid a kind or age then on the defendants' ranches, balance on account claimed by them. Plainexcept the 1,000 steers mentioned therein as tiff had great need of the bonds, and could having already been sold and not delivered. not well wait for the slow process of the law The contract reserved 1,000 steers, but is to restore them to her, and she paid this silent as to the class or ages of the steers balance, not assenting to the account, and reserved. The contract with Hawkes, un- not assenting that it was justly due, for der which the 1,000 steers had been sold, the sole purpose of releasing her bonds. The specified the classes or ages of the steers court said: "Under such circumstances it sold to him. If defendants had sold to is well settled that the law does not regard Hawkes 1,000 steers without reference to a payment as voluntary." Counsel for detheir ages, then, under their contract with fendants refer us to Wolfe v. Marshal, 52 plaintiffs, they could have selected out steers Mo. 167. In that case the court say: "A of any age to fill the Hawkes contract, and payment of money upon an illegal and unplaintiffs would have had no ground of just demand, when the party is advised of complaint. The contract with plaintiffs all the facts, can only be considered involonly showed how many steers were re-untary when it is made to procure the reserved. There was a latent ambiguity in lease of the person or property of the party plaintiffs' contract as to the ages of the from detention, or when the other party is steers reserved, and as they were reserved to fill the Hawkes contract it was proper to resort to 'it to explain this ambiguity. No yearling steers had been sold to Hawkes, and hence none were reserved, and none could be withheld from plaintiffs. The parol evidence was admissible, not to vary or contradict the terms or language of the contract, but to show the sense in which the

armed with apparent authority to seize upon either, and the payment is made to prevent it." Counsel also cite Radich v. Hutchins, 95 U. S. 210, where it is said: "To constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary, *** there must be some actual or threatened exercise of power possessed, or believed to be possessed.

L. W. Elliott, for appellants. Baldwin & Campbell, (Edward I. Jones, of counsel,) for respondent.

by the party exacting or receiving the pay-divided one-half interest in the land, and ment over the person or property of an- defendants appeal. other, from which the latter has no other means of immediate relief than by making payment." Counsel also cite Peyser v. Mayor, 70 N. Y. 497. In that case, FOLGER, J., speaking for the court, said: "I have VANCLIEF, C. While the plaintiff and spoken of coercion in fact and coercion by Roxanna Simpson were husband and wife law. By the first I mean that duress of they acquired title to the land described person or goods where present liberty of in the complaint by patent from the United person or immediate possession of goods is States to plaintiff. Afterwards, while they, so needful and desirable as that an action with their children, were residing upon the or proceedings at law to recover them will land, the wife executed, acknowledged, and not at all answer the pressing purpose. recorded a declaration of homestead upon The rule laid down in these cases is not in the land, the validity of which is not quesconflict with the law as given to the jury by tioned. Thereafter the wife brought an the court below, and is as favorable to ap-action against the plaintiff herein for a dipellants as any of the numerous cases cited vorce on the grounds of extreme cruelty and by defendants' counsel. The possessory habitual drunkenness, in which, on the 10th right to the ranges, ranches, and water day of September, 1875, the district court sold to plaintiffs covered a large part of an rendered a judgment and decree, without area 60 miles square. There was some per- written findings, other than recited in the sonal property used in connection there- decree, of which the following is a copy: with, and nearly 7,000 head of cattle, and "In the district court of the Fifth judicial over 50 head of horses ranging thereon. district of the state of California, in and for Plaintiffs had already paid $175,000 pur- the county of San Joaquin. Roxanna Simpchase money for this property. Delivery | son, Plaintiff, vs. John K. Simpson, Defendwas refused by defendants until an illegal ant. In this action it appearing to the and unjust demand for property not deliv-satisfaction of the court from the evidence ered was paid. It was in the midst of win- in the action that the defendant herein has ter, when the property required the per- been guilty of extreme cruelty as charged sonal care of the owner. Plaintiffs were in the complaint in this action, and that compelled to either pay this demand or said defendant has been for two years last seek redress by tedious and expensive liti- past an habitual drunkard, it is therefore gation, the property remaining meantime ordered, adjudged, and decreed that the in the possession of parties hostile to plain- bonds of marriage between plaintiff and detiffs' interest, and liable to great deteriora- fendant be, and they are hereby, dissolved, tion and loss. Payment under such circum- and said parties are, and each of them is, stances was not a voluntary payment, and, hereby released from all of the obligation being made under duress, may be recovered thereof. And it is further ordered, adback; and the fact that it was made with judged, and decreed that the plaintiff in knowledge of all the facts makes no differ- this action have and own, and that she be ence. See Adams v. Schiffer, (Colo.) 17 Pac. entitled to the possession of, the homestead Rep. 21; Spaids v. Barrett, 57 Ill. 289; Hack- and common property in the complaint deley v. Headley, 45 Mich. 569, 8 N. W. Rep. scribed in this action, with the exception of 511; McPherson v. Carr, 86 N. Y. 472. The three horses, their harness, and a wagon, judgment of the district court is affirmed. and that said defendant have and own said horses, harness, and wagon as his separate property. It is further ordered, adjudged, and decreed that the children of plaintiff and defendant be, until the further order of this court, with the exception of their son John J. Simpson, awarded to the care and custody of plaintiff, and that the care and custody of their said son, John J. Simpson, until the further order of this court. be awarded to said defendant. It is further ordered that said homestead property hereby awarded to plaintiff be held by her in trust for her support, and for that of the children of the parties to this action. It is further ordered and adjudged that the said parties to this action be, and each of them is, authorized to visit and enjoy the society of their children at all suitable times and occasions. S. A. BOOKER, District Judge. September 10, 1875." On September 6, 1877, Roxanna Simpson died, leaving her surviving eight children of her marriage with the plaintiff, who are the defendants in this action, and three of whom were still minors when the judgment in this action was rendered.

ZANE, C. J., concurs.

SIMPSON V. SIMPSON et al. (No. 13,001.) (Supreme Court of California. Aug. 30, 1859.)

DIVORCE AWARD OF HOMESTEAD TO WIFE.

A wife had executed and recorded a declaration of homestead on certain land, and held possession under a decree rendered in a subsequent action for divorce, awarding the homestead property to her, "to be held by her in trust for her support and for that of her children." Held, that no trust was created in the homestead property by such decree, but it passed an absolute title to the wife, under Civil Code Cal. § 146, subd. 3, which provides, in case of a divorce, that if a homestead has been selected from the community property it may be as signed to the innocent party, either absolutely or for a limited time, subject in the latter case to the future disposition of the court.

Commissioners' decision. In bank. Appeal from superior court, San Joaquin county; A. VAN R. PATERSON, Judge.

Action by John K. Simpson against Joshua Simpson and others, to quiet his title to certain land held by them as children and heirs at law of Roxanna Simpson, wife of the plaintiff, and from whom he was divorced. Judgment for plaintiff for an un

The object of the action is to quiet plaintiff's alleged title to said homestead land, which title is denied by the defendants. What was the effect of the divorce, decree

upon the husband's title to the homestead? | particular technical words need be used. is the only question presented for decision. Even the words 'trust' or 'trustee' are not Upon the foregoing facts the trial court ad- essential; any other words which unequivjudged that from and after the entry of the ocally show an intention that the legal esdecree of divorce Roxanna Simpson and the tate was vested in one person, but to be plaintiff held and owned the homestead held in some manner, or for some purpose land "as tenants in common, subject to the on behalf of another, if certain as to all trust declared in said decree for the benefit other requisites, are sufficient. On the of said Roxanna and her children; that, so other hand, if the words 'trust' or 'trustee' long as any of said children are under age, are employed, they do not necessarily show said property must be held in trust for his an intention to create or declare a trust." or their support and maintenance; and that See, also, Perry, Trusts, § 83. when the youngest of said children arrives As to the inference of a trust from the at the age of majority said John K. Simp- uses of the words, "for her support, and for son will be entitled to have, hold, and own that of the children," and like words and an undivided one-half interest therein, re- phrases, Mr. Pomeroy says, (section 1012:) lieved from said trust.' Subdivision 3 of the "No definite rule can be laid down; each 146th section of the Civil Code provides, in case must stand upon its own circumcase of a divorce, that "if a homestead stances. If the language is sufficient for has been selected from the community the intention to be clearly inferred, the property it may be assigned to the inno-trust will be enforced; otherwise the donee cent party, either absolutely or for a limited will take an absolute estate, and the properiod, subject in the latter case to the fut- visions concerning maintenance will be reure disposition of the court." The third garded as mere motives for the gift, and recparagraph of the divorce decree expresses ommendations addressed to his discrean absolute, unconditional assignment of tion." the homestead property to the wife-"the innocent party"-in pursuance of the authority conferred upon the court by the above section of the Code, unlimited to any period of time, and which is not limited to any period by any other part of the decree; nor, properly construed, does the fifth paragraph of the decree reduce the estate assigned to a trust, or otherwise qualify its absolute character.

The meaning of the fifth paragraph of the decree is certainly indefinite and obscure, and therefore properly subject to construction. The intent to create a trust does not clearly appear from the language of the decree itself, to say nothing of other considerations which may be properly invoked as aids to the construction. In section 1009 of Pomeroy's Equity Jurisprudence the author says: The declaration of trust, whether written or oral, must be reasonably certain in its material terms; and this requisite of certainty includes the subjectmatter or property embraced within the trust, the beneficiaries or persons in whose behalf it is created, the nature and quantity of interests which they are to have, and the manner in which the trust is to be performed. If the language is so vague, general, or equivocal that any of these necessary elements of the trust is left in real uncertainty, then the trust must fail." The decree under consideration is uncertain as to what interest the children are to have. Are they entitled to support for life or only during their minority? When a part of them arrive at the age of majority or die, is the interest of the infants or survivors thereby increased? Under any circumstances would the beneficiaries be entitled to have the land sold and the proceeds expended for their support, or are they limited to the rents and profits? In case the rents and profits should be more than sufficient to support those entitled to support, what disposition is to be made of the surplus? Who would be entitled to call upon the trustee to account for such surplus? And, finally, in what manner is the trust to be performed? Again, in the same section, the author proceeds to say: "No

The words in the divorce decree from which it is claimed that a trust may be inferred, immediately follow the paragraph giving the wife the custody of seven minor children, and thereby casting upon her the duty of supporting and educating them, regardless of any aid which the court might allow her from the property of her husband. Under these circumstances it seems not to have been inappropriate for the court to express, as a reason or motive for giving her the homestead, that it was intended for the support of herself and children, for which, by the decree, she had been made solely responsible. Another consideration tending to support the construction here given to the decree is that the law did not authorize the court to assign the homestead, or any equitable interest in it, to the children, nor to the wife in trust for any purpose; and, in the absence of a reasonably clear expression to the contrary, the court must be presumed to have intended to act within the scope of its authority, and not to exceed it. The authority of the court, in actions for divorce, to transfer the property of either party to the other, or otherwise to dispose of it, is purely statutory; and the statute did not authorize the court to create a trust in the homestead or community property, but only to assign it directly to the innocent party "absolutely or for a limited period." If any trust was created in this case by the divorce decree, it must have been a direct or express trust, created not by the owner personally, nor by any agency authorized by him, but by the court, acting by authority of law; but it is plain that the court had no such statutory authority, and our courts have no common-law authority to create any kind of trusts, certainly not express trusts. In the exercise of equity jurisdiction they find and adjudge trusts to exist by reason of contracts, devises, bequests, gifts, or wrongful or fraudulent acts, and may always appoint trustees when necessary to execute them, but never, by common-law authority, create them. It should be further remarked in this connection that as to the interest given to the wife she could not be

trustee for herself, it being a legal impossibility for a person to be both trustee and cestui que trust at the same time, (Perry, Trusts, § 13;) and, moreover, that it is at least doubtful whether an express trust, for the purpose claimed in this case, is authorized by our Civil Code, (sections 847 and 857,) since it is not expressed nor clearly implied in the divorce decree that the rents and profits only of the homestead property were to be applied to the use of the wife and children. Indeed, "rents and profits" are not mentioned in the decree. It is not necessary or proper to decide what would have been the effect of a decree (as to being void or only voidable by appeal) clearly expressing an assignment of the homestead in trust; since it appears, by proper construction of the decree rendered, that by it the court did not intend to create a trust, or to limit or qualify the absolute assignment to the wife expressed in the third paragraph of the decree. I think the judgment should be reversed, and that the trial court should be directed to give judgment for the defendants upon the findings of fact.

We concur: BELCHER, C. C.; GIBSON, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment is reversed, and the court below directed to enter judgment for the defendants upon the findings of fact.

respondents for a modification as to her of an order staying all proceedings on the judgment pending appeal, will not be allowed where the considsue of fact, and involves a question of law upon eration of such motion presents an important isthe construction of a provision of a will, even if the right to grant such modifying order were unquestioned, where such statutory undertaking has been filed.

In bank. Appeal from superior court, city and county of San Francisco; JAMES G. MAGUIRE, Judge.

Suit by Caroline Born against Herman Horstmann, trustee, and Magdalena Ellen Lux, Elizabeth Zimmer, Mary Schieffler, and the minor children of said three defendants, for partition of certain real estate in which plaintiff claims an interest under a will. The trial court ordered the property sold and the proceeds distributed. The minor defendants, by Charles A. Sumner, their guardian at litem, filed the statutory undertaking, and appealed from said decree, praying for a supersedeas to stay the distribution of said proceeds. The supreme court thereupon granted a temporary restraining order. Pending this appeal, respondent Elizabeth Zimmer now makes application to this court for a modification of the stay of proceedings, in order that she may immediately receive what she claims to be her share of the proceeds of said sale.

Charles A. Sumner, guardian ad litem, (M. T. Moses, of counsel,) for appellants. E. J. Linforth, (Henry N. Clement, of counsel,) for respondent Elizabeth Zimmer. A. PATERSON, J., did not participate in the H. Loughborough, for respondents Lux and decision of the above cause. Schieffer.

In re ROSE's ESTATE. (No. 12,408.) (Supreme Court of California. Aug. 31, 1889.) In bank. On application for rehearing. For opinion on first appeal, see 20 Pac. Rep. 712; for opinion on rehearing, reversing the former decision, see ante, 86.

.

PATERSON, J. The $300 undertaking on appeal herein stays all proceedings on the judgment, independently of the restraining order made by the court on the 27th day of April, 1888. In Re Schedel, 69 Cal. 243, 10 Pac. Rep. 334, it was held that "sections 942 to 945, inclusive, apply to appellants who are Wal. J. Tuska and W. W. Foote, for ap-required to perform the directions of the pellant. Stetson & Houghton, for respond-judgment or order appealed from." In the case before us the appellants are not required by the judgment to do anything. Therefore the perfecting of the appeal by giving the undertaking mentioned in section 941 ipso facto operates as a supersedeas, and the order heretofore made herein, on motion of appellants, was not essential to preserve their rights on appeal.

ent.

BEATTY, C. J. Rehearing denied. The concluding paragraph of the opinion heretofore filed is modified so as to read as follows: The order appealed from is reversed, with instructions to the court below to allow, in the account of the administrator, the claim of $15 paid Noble for appraisers' fees, and all Counsel for Mrs. Zimmer, one of the rethe items which the evidence shows to have spondents, now asks for a modification of been expenses of carrying on the business, as the order as to her, for the reason that by defined in the foregoing opinion, except such a decree of divorce made and entered in the as are duplicated or withdrawn; also that superior court on the 24th day of May, 1888, the administrator be allowed to introduce dissolving the marriage which had existed any additional evidence he may have in-between her and her husband, she has besupport of any of the remaining items which have been rejected or retired from his account, and thereupon that the account be restated in accordance with this opinion.

BORN V. HORSTMANN et al. (No. 12,586.) (Supreme Court of California. Sept. 6, 1889.)

APPEAL-REVIEW-SUPERSEDEAS.

come "lawfully separated from her husband," and therefore is entitled, under the provisions of the will, to her one-fifth share of the money,-$2,540.06. In support of this motion a certified copy of the decree of divorce referred to is presented to us. As the $300 undertaking operates, under the statute, as a stay of proceedings, however, it is questionable whether we could, under any circumstances, grant the order asked for; but under the peculiar circumstances of this case we should be unwilling to make the

1. In a case where appellants are not required to do anything by the judgment, the filing of the statutory undertaking on appeal ipso facto operates as a supersedeas, staying all proceedings on the judg-order if the power to do so were undoubted. The provisions of the will which are to be

ment.

2. In such case, an application by one of the construed are very peculiar,-unusual. The

motion now under consideration presents a trial and decision by a jury, or court, or by not only an important issue of fact, viz., referees;" and section 659, Code Civil Proc., whether Mrs. Zimmer has been "lawfully provides that "the party intending to move separated from her husband." within the for a new trial must within ten days after meaning of the phrase as used in the will, the verdict of the jury, if the action were but also a question of law as to the proper tried by a jury, or after notice of the decision construction of one of the provisions of the of the court or referee, if the action were will,-a question which ought to abide a tried without a jury, file with the clerk and hearing on the merits of the appeal. Motion serve upon the adverse party a notice of his denied. intention," etc. These two sections of the Code must be read together. No proceed

We concur: WORKS, J.; SHARPSTEIN, J.; ings for a new trial can be had until "after MCFARLAND, J.; THORNTON, J