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for her support and maintenance, and to though none is given in words." 2 Perry, pay her just debts. It is insisted by plain- Trusts and Trustees (6th Ed.) 8 766. tiff's counsel that by the second clause of To the same effect see, also, 39 Cyc. 351; the deed the authority conferred by the first 1 Devlin, Real Estate (3d Ed.) 8 432, note 7. paragraph thereof, to sell and convey the The testimony does not show what sums of lots, terminated at the grantor's death, when money, if any, were advanced or borrowed all the property or the proceeds thereof then by the defendants, or either of them, and emremaining was to be held in trust for the ployed in supporting their mother. There beneficiaries named in the conveyance. It were received in evidence, however, canceled will be remembered that by the first clause checks which had been issued by the defendthe authority to take possession of and lease ant Julius C. Friendly in payment of taxes the land was as expressly granted as was levied, and municipal assessments imposed the power to sell and convey the lots. In upon the lots hereinbefore described, and tax seeking to ascertain Mrs. Friendly's inten- receipts, showing that between February 25, tion, as evidenced by the conveyance, it 1907, and March 11, 1912, he had paid out cannot reasonably be supposed that it was for such purposes the sum of $11,337.12. As her purpose, if no sale of the premises were a witness he testified that the annual income made during her lifetime, as was the case derived from the real property in question herein, the trustees were required or expect- would not meet the payment of more than ed to let the real property remain tenantless one-half of such exactions. and unproductive, so that no benefits there- The power of the trustees to sell the land from could have been obtained, though the in order to meet the payment of the money annual taxes to be levied thereon were in- so advanced is clearly implied, and such auevitable and the municipal assessments for thority could legally be exercised after the public improvements probable. To impute death of Mrs. Friendly. such a design to Mrs. Friendly would be

[3] The verified complaint of the defendant challenging the intelligence of a woman who Emma Cohn, in her suit to obtain a judicial had acquired and held for many years real construction of the trust deed, alleged in efproperty of the value of these lots.

fect that as a trustee and a beneficiary un[2] It must be admitted, however, that der that conveyance she had endeavored to when a trustee who has possession of lands cause a part of the real property to be sold, belonging to the trust estate, is charged with but had been unable to secure a purchaser the payment of debts, but has no power of thereof. The land consists of two contiguous sale, he has implied authority to lease the lots in the city of Portland, Or.; and, while real property upon such terms and conditions the general rule is that no more of a trust as usually prevail in the city or country in estate should be sold than is necessary to which the land is situated. 2 Beach, Trusts meet the payment of debts against it, the apand Trustees, & 446; 2 Perry, Trusts and plication of this legal principle does not reTrustees (6th Ed.) 8 528. If, after Mrs. quire

that small parts of an entire tract Friendly's death, the trust deed prohibited a shall be segregated and sold as exigencies resale of the land, then any sums of money quire, for by that method the value of the that had been borrowed or advanced by the entire tract would probably be much dimintrustees, or either of them, to secure her sup- ished. When, as in this instance, the real port and maintenance could not be deducted property comprises a single parcel, though from the trust estate, in case a sale of the consisting of more than one lot, and the best real property was not made during the trus-interests of a trust estate will be subserved tor's life. But, as by the second clause of by a sale thereof in solidum, such disposition the deed authority to make such deductions of the land will be upheld if, as in the case is expressly granted to take effect after her at bar, it has been fairly conducted. death, the power thereafter to sell and con- [4, 5] In construing the terms of a trust vey the land is necessarily implied. Brown deed, the purpose of a court should be to asv. Brown, 7 Or. 285. In that case it was certain the trustor's intention, which design ruled that where a testator devised his real is to be determined from an inspection of the estate to trustees to pay his debts and to entire language of the conveyance. If the hold the residue in trust for the benefit of an words thus employed are plain and unambig. incorporated town, the trustees, who were uous, there is no necessity for judicial inter. also the executors of the will, had implied pretation. “But where the instrument is inpower to sell sufficient land to pay the debts, definite or inconsistent, the court can look at where the will contained no express power the declarations of the donor and consider for that purpose.

A text-writer, in discuss the surrounding circumstances in determining this legal principle, remarks:

ing just what the intention of the donor "No particular form of words is necessary to

was." 39 Cyc. 197. create a power of sale. Any words which show

[6] The second clause of the trust deed rean intention to create such power, or any form quires the trustees to pay over to the trusof instrument which imposes duties upon a trus- tor's sons and daughters "the rents, issues, tee that he cannot perform without a sale, profits and income from said property, or the will necessarily create a power of sale in the trustee. Thus an assignment in trust to pay proceeds thereof during the term of their

clause demands that in case of the death of ; deprive himself of a power of sale conferred either trustee, the survivors shall pay to the for the benefit of the trust; nor so to fetter issue, if any, of the deceased trustee “such its exercise by himself or his successor as to part or portion of the income of my said es- defeat the purposes of the trust. In deciding tate hereby conveyed in trust, which the par- that case it is said : ent of such issue if living, would be entitled “The power conferred is an authority to sell to receive under this trust." A compliance during the life of the husband, and a perempwith these provisions imposed upon the de- tory, direction to sell immediately after his

death. As the husband of the testatrix was fendants the discharge of active duties to the executor, and during his life the sole posperform, which power was impliedly confer sessor of the power, he might have made a red, whereby they were authorized to adopt however, he did not do. He did not sell the

sale deferring the time of settlement. This, such reasonable means as were essential to property but entered into an agreement with carry out the intention of the trustor, as evi- the plaintiff, which gave her the privilege of denced by the language of her deed when buying at any time within 312 years. By this considered in its entirety. What these meth- agreement she was entirely free; she was not

bound to purchase. But he, and in the event ods were to be are left somewhat in doubt of his death his successor in the trust, was by the second clause of the conveyance, bound to sell to no one else during the period which provides that upon the death of Mrs. fixed. The vice of the agreement is that it Friendly, the trustees “shall hold all the detriment to it might be, without giving it

bound the trust estate, no matter what the rest and residue of said property or the pro- any corresponding advantage. This was not a ceeds thereof in trust for the use and benefit use of the power, but a surrender of it for of my said five children." If the latter the time. It suspended the exercise of the

discretion which had been given the execuclause was designed to prohibit a sale of the tor, and defeated the direction in the will for land after the trustor's death, then it was an immediate sale upon his death." impossible for the defendants to discharge

In a note to that case it is said: the duties enjoined upon them in respect to

“A trustee, under a deed of trust, has no any disposal of the proceeds of the property, power to impose new terms or conditions, or for without a sale thereof no income there to alter, vary. or dispense with those containfrom was possible, since the rents would not ed in the deed." discharge more than one-half of the taxes

The trust deed herein did not contain, as and other expenses. Construing together the the provisions of the will in the last case, a clauses referred to, a latent ambiguity is command to dispose of the real property in manifest, as to the means to be adopted to any designated time. By the express terms accomplish the purpose clearly intended. In of their mother's conveyance the defendants view of such uncertainty the testimony of were empowered to take possession of, manthe several defendants, and that of the at- age, control, lease, mortgage, sell and convey torney who at Mrs. Friendly's request pre to my said trustees shall be deemed advis

the land and invest the proceeds thereof "as pared the trust deed, was properly received, able." Pursuant to this grant of authority showing that the provisions of the prst the lease which the defendants executed reclause of the conveyance were intended by quired the plaintiff, at its own expense, to the trustor to be incorporated in, and read in erect upon the lots within a specified time a connection with all the other clauses when building of a particular value, annually to necessary to a proper execution of the power liquidate the taxes and such assessments as conferred.

might be imposed upon the premises, and We conclude, therefore, that all the powers expressly conferred by the first clause of monthly to pay the rent reserved, unless pri

or to the termination of the devise the option the trust deed are applicable to all the other to purchase the land was exercised. The paragraphs thereof when essential to give plaintiff was not compelled to purchase the validity thereto and to carry out Mrs. real property, but was obliged to erect thereFriendly's intention, thereby authorizing the

on a building, which improvement enhanced defendants, as well after as prior to her the value of the trust estate, and made the death, to do and perform all the acts and rents thereafter to be received a decided benduties specified in the first clause of the deed, efit, instead of a substantial burden as it had except such as relate to the care and support theretofore been. The covenant to put up the of the trustor.

building was a sufficient consideration for [7] It is contended by plaintiff's counsel the option, which right of election was not that the option attempted to be granted to void for any lack of authority on the part of their client, to purchase the property, was

the defendants to grant it. not an exercise of the power conferred upon

[8] It is maintained by plaintiff's counsel the defendants to sell and convey the prem- that, the trust being limited to the life of ises, for such authority does not include pow- the survivor of the trustees, the defendants er to grant an option to purchase the real could not lease the lots for a term to expire property. The strongest case cited to support beyond that period of restriction. The case the principle so insisted upon will be exam- relied upon as supporting this assertion is ined. Thus in Hickok v. Still, 168 Pa. 155, that of Bergengren v. Aldrich, 139 Mass. 259, 31 Atl. 1100, 47 Am. St. Rep. 880, it was 29 N. E. 667, where it was decided that a ruled that a trustee was not permitted to will devising land to a trustee for the life

of a third person, with power to sell, a lease, the grant arises, in order that the trust executed by the trustee for a certain term, might properly be administered. 2 Beach, with an agreement to renew at the end of Trusts and Trustees, $ 395; 1 Perry, Trusts the term for another period, could not be and Trustees (6th Ed.) 8 307. At section 373 renewed after the death of the person dur- of the latter volume the author remarks: ing whose life the trustee was to hold, since “So a power given to executors to rent, lease, such agreement in the lease did not bind the repair, and insure implies a legal title in them.” remainderman. The lease herein was exe

(11) Where a trust deed expressly or imcuted January 2, 1912, when the age of the pliedly authorizes a trustee to sell real propyoungest defendant was 40 years. Such per- erty belonging to the trust estate, no action son then had a life expectancy of 28.18 of the court is necessary to effectuate a years. 20 Am. & Eng. Ency. Law (2d Ed.) proper execution of the power thus confer885. Though the demise was for a term of red. 39 Cyc. 346, 348. The legal title to 30 years, or 1.82 years in excess of such the lots thus being in the defendants, they average anticipation, the probability of the could, without any order of court authorizdeath of the youngest defendant within the ing it, by a proper deed transfer all the 'eslimit of the term is not so certain as to ren- tate, right, title, and interest which their der the lease void on account of the pre-mother had or held in or to the land free scribed time, when it is remembered that the from any claim thereon or thereto on the last surviving trustee was authorized to exe- part of her unborn grandchildren, for whom, cute all the powers conferred by the terms if any should subsequently come into being, of the trust deed. [9] It is argued by plaintiff's counsel that fund derived from the sale of the real prop

the defendants will hold the principal of the the construction of a trust deed by a court, erty in trust, or if no grandchildren be born at the instance of trustees who themselves then in trust for the heirs of the last surare the beneficiaries for life, is not binding

vivor, the trustees appropriating to themupon possible remaindermen when no person of that class is in esse at the institution selves, however, the rents, issues, profits, or determination of the suit. The legal and income from such land or the income principle thus insisted upon seems to be well

therefrom. sustained by the decisions of courts of last

[12] The trust deed imposes upon the de resort, as is illustrated by the notes to the fendants the duty of selling the land in orfollowing cases: Kent v. Church of St. Mi. der to convert the same into money and reinchael, 136 N. Y. 10, 32 N. E. 704, 18 L. R. A. vesting the proceeds for the benefit of the 331, 32 Am. St. Rep. 693; Hale v. Hale, 146 trust estate. In such case the purchaser of Ill. 227, 33 N. E. 858, 20 L, R. A. 247; Gavin the land, as was properly held by the trial v. Curtin, 171 Ill. 640, 49 N. E. 523, 40 L. R. court, is under no obligation to see to the A. 776; Downey v. Seib, 185 N. Y. 427, 78 application of the purchase money. 2 Beach, N. E. 66, 8 L. R. A. (N. S.) 49, 113 Am. St. Trusts and Trustees, $ 718.

It follows from these considerations that Rep. 926; Boal v. Wood, 70 W. Va. 383, 73 S. the decree should be affirmed; and it is so E. 978, 42 L. R. A. (N. S.) 439. But whatever

ordered. the rule may be in such a case, it can have no application to the plaintiff herein, which

McBRIDE, O. J., and HARRIS and BEAN, was not a party to the suit instituted by JJ., concur. Emma Cohn against her brothers and sisters to secure a construction of the trust deed, and for that reason the Crown Company is

(102 Wash. 120) not concluded by the decree rendered therein. JONES v. CHICAGO, M. & ST. P. RY. CO. [10] It becomes important to determine

(No. 14387.) the nature of the title which the defendants (Supreme Court of Washington. May 6, 1918.) secured to the land by the execution of their mother's deed. In Oregon the term “heirs," 1. MASTER AND SERVANT Om 285(1) – INJURY or other words of inheritance, are not nec

TO SERVANT-QUESTION FOR JURY.

In an employé's action against a railroad essary to create or convey an estate in fee company for personal injuries sustained in fallsimple. L. 0. L. 8 7103. It is unnecessary ing from a carload of logs while unloading them, to advert to the statute of uses which has whether his falling was caused by stepping on a

piece of bark upon the loaded car or by the sudnever been enacted in this state. An exami- den jerking of the car due to the operation of a nation of the deed hereinbefore set forth | Marion loader was for the jury. will show that the conveyance is an excep 2. EVIDENCE Om514(1)-INJURY TO SERVANTtion to the operation of that statute, grant

EXPERT EVIDENCE. ing to the trustees possession of the prem- in falling from a carload of logs which he was

In a servant's action for personal injuries ises, and imposing upon them the perform- engaged in unloading, it was not error to admit ance of active duties relating to the control expert testimony as to whether it was a safe and management of the estate, thereby re- and proper method to place the jammer upon a quiring that the legal title should rest in track alongside the load and fix the hooks from

à cable in the logs and unload them in that them, until the contingency referred to in manner.

!

3. MASTER AND SERVANT 295(1)-INJURIES dict at the close of the respondent's case and

TO SERVANT-INSTRUCTIONS-ASSUMPTION OF at the close of all the evidence, and in deny-
RISK.

In a servant's action for personal injuries, ing a motion for a judgment notwithstanding
sustained from falling from a carload of logs" the verdict; and in this connection it is urg-
while unloading them, an instruction that to ed that the evidence is insufficient to show
charge a servant with assumption of risk, it any negligence on the part of the appellant
must appear that he knew and appreciated the
danger, and that, where a servant is ordered to or its employés, and that the dangers were
do an act involving peril to himself, such order open and apparent, and were therefore as-
contains an assurance of safety, and the servant sumed by the respondent. The appellant also
may obey unless the danger is so open, obvious, contends that the cause of the respondent's
and imminent that no person of ordinary care
and prudence would encounter it, was not erro- injury was the fact that he negligently
Deous.

stepped upon a piece of loose bark upon the Department 2. Appeal from Superior loaded car and in so doing fell from the Court, Spokane County; R. M. Webster, car and was injured thereby. Whether the Judge.

fall of the respondent was caused by his Action by Louis Jones against the Chicago, stepping upon this piece of bark or by the Milwaukee & St. Paul Railway Company. sudden jerking of the car upon which he was From a judgment for plaintiff, defendant ap- engaged in his work was, we think, a quespeals. Affirmed.

tion for the jury. The jury was instructed Cullen, Lee & Matthews, of Spokane, and his stepping upon a loose piece of bark, there

that, if the cause of respondent's fall was Geo. W. Korte, of Seattle, for appellant. could be no recovery. Robertson & Miller, of Spokane, for respond found that this was not the cause of his fall,

The jury evidently ent.

but that the cause of his fall was the sudMOUNT, J. Action for personal injuries. the abstract of the evidence, and we find tes

den jerking of the car. We have examined Plaintiff recovered a judgment on the ver- timony therein to the effect that there was dict of a jury in the court below. The defendant has appealed.

a sudden movement of the car, and that this The action was brought under the federal fall. Of course, this evidence was disputed,

movement of the car caused the respondent's Employers' Liability Act. Act Cong. April but the credibility of it was for the jury to 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. decide ; and even though the appellant makes 1916, 88 8657–8665). The respondent was employed by the appellant as a car repairer.

a strong argument to the effect that the real A carload of sawlogs was being transported ping upon the piece of bark we cannot weigh

cause of the respondent's fall was his stepover the line of the appellant railway. This the evidence upon that question. The weight load of logs had spread so that it became too of the evidence and its credibility were queswide to pass through a subway upon the ap- tions for the jury to decide. We are satisfied pellant's line. It became necessary to rear that there was sufficient evidence upon this range the load of logs by drawing in the question to go to the jury. The court therestakes upon the sides of the car. In order to fore did not err in refusing to direct a verdo this it was necessary to unload a part of aict or to grant a nonsuit or to enter judgthe logs. For this purpose the load of logs ment in favor of the appellant notwithstandwas stationed upon a side track, and what ing the verdict. is called a Marion loader was stationed along.

[2] Appellant next contends that the court side of the car to be unloaded. The respond- erred in permitting an expert witness to anent was upon the carload of logs, and his

swer a question to the effect: duty was to fasten tongs to the logs upon

"Was it a safe or proper method of unloading the car so that the Marion loader might lift logs from the car to place the jammer upon a the logs from the car. While engaged in this track alongside of the load of logs and fix the work the respondent fell from the car and hooks from a cable in the logs and unload them

in that manner?
was injured.
It was maintained by the respondent that

Appellant urges that the jury was compe-
the work was done in an unsafe manner by tent to judge of the safety and reasonable-
reason of the fact that the Marion loader ness of the method. In the case of Luper v.
was placed upon a track at the side of and Henry, 59 Wash. 33, 109 Pac. 208, we held
parallel with the track upon which the load that it was not error to permit expert testi-
ed car was placed. It was also maintained mony upon questions of this character.
that the loaded car should have been blocked

(3) Appellant next argues that the court so that it could not move, and that, by rea- erred in giving the following instruction: son of the fact that the loaded car was not of risk, it is necessary

that it be made to appear

"In order to charge a servant with assumption blocked when unloading the logs, the Marion that the servant knew and appreciated the danloader gave the loaded car a sudden jerk ger from which such injury resulted. Where a which threw the respondent from the car. servant is ordered to do an act involving peril [1] The appellant argues that the court safety, and the servant has a right to obey the

to himself, the order contains an assurance of erred in denying a motion for a directed ver- l order unless the danger is so open, obvious, and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

imminent that no person of ordinary care and the former opinion, 89 Wash. 187, 154 Pac. prudence would encounter it."

173. An instruction substantially to this effect The complaints in both actions set forth in was approved in Anustasakas v. Internation- detail the negotiations between the parties al Contract Co., 57 Wash. 453, 107 Pac. 342. leading up to the execution of the written

We find no reversible error in the record, contract and right of way deed, and the eviand the judgment is therefore affirmed. dence introduced upon the second trial was

identical with that presented in the first, ELLIS, C. J., and HOLCOMB and CHAD- with the exception of the additional testimo WICK, JJ., concur.

ny of E. C. Hughes, which was merely cumu.

lative, and would have been pertinent to the WEBSTER, J., took no part,

issues raised in the former action if appellant's theory of the case had been sustained

by the court. The controversy between the (102 Wash. 95) TACOMA MILL CO. v. NORTHERN PAC. parties is with respect to the nature and exRY. CO. (No. 14375.)

tent of the right of way granted by appellant

to the respondent; the former contending (Supreme Court of Washington. May 4, 1918.) that it was merely a limited and qualified JUDGMENT 713(2) RES ADJUDICATA

easement for the uses and purposes of the MATTERS CONCLUDED.

“bay side extension” of the railway comWhere plaintiff brought action to enjoin pany's line to be used for a freight and indusalleged violation of a written agreement, the question being as to the intention of the parties, trial track only, while the latter contended à judgment in such action was a bar to a sub- that the easement conveyed by the mill comsequent action to reform the instrument on pany is an absolute and unqualified grant of the ground of mutual mistake, although mutual the right of way for any and all legitimate mistake was not pleaded in the first action, especially where plaintiff insisted in such action railway purposes. Appellant, in support of that the court had jurisdiction to reform, or its position in the former case, alleged and to treat as reformed, the instrument in ques. sought to prove by oral testimony and cortion, and the court decided that, even if the court had such authority under the pleadings, respondence between the parties that the inno grounds for reformation was shown, be- tention was to grant merely the restricted cause an adjudication by a court having ju- privilege above stated, while the respondent risdiction of the subject matter and of the par-insisted that the written contract was clear ties is final and conclusive, not only as to the matters actually determined, but as to every and unambiguous; hence not open to extrane other matter which the parties could and ought ous construction. The court'below, as well as to have litigated as incident thereto and com- this court, on the former appeal upheld the ing within the legitimate purview of the sub-contention of the respondent, and denied the ject-matter of the action.

appellant the relief prayed. In the briefs on En Banc. Appeal from Superior Court, the former appeal it was insisted by appelPierce County ; C. M. Easterday, Judge. lant that:

Action by the Tacoma Mill Company, a cor- “Where a bill in equity states the facts showporation, against the Northern Pacific Railing what was the real agreement and intention way Company, a corporation. Judgment for of the parties and asks the enforcement or pro

tection of plaintiff's rights thereunder, coupled defendant, and plaintiff appeals. Affirmed. with a prayer for general relief, the court will Hughes, McMicken, Dovell & Ramsey, of grant the full relief to which the party is en

titled, either by reforming tho instrument to Seattle, and John D. Fletcher, of Tacoma, for express the intention of the parties, or by appellant. Geo. T. Reid, L. B. da Ponte, and treating it as so reformed." J. W. Quick, all of Tacoma, for respondent.

In considering this matter this court in the

former opinion said: WEBSTER, J. Appellant brought this ac- "Appellant did not plead any mistake or tion to reform a written contract made be- fraud. There was no fiduciary relation between tween the parties on January 24, 1906, upon the parties. They dealt at arm's length. Each the ground of mutual mistake. From a judg-counsel. They proceeded with the utmost care

party was represented by extremely competent ment denying the relief sought, this appeal is and deliberation. Without reviewing all the prosecuted. The controversy between the cases cited by appellant upon this phase of parties was before this court on a former the case, it will be found that in nearly all of

them appears some fact or circumstance tendappeal, in an action brought by the appellanting to show fraud or mistake, aside from the against the respondent for injunctive relief mere reliance upon the representations of the growing out of an alleged violation of the other party to the contract as to its contents.” written agreement above referred to, by the

Thus it will be seen that the court declined respondent railway company in its threaten- to adopt appellant's view for the reasons: ed use of the right of way granted by appel. First, that mutual mistake had not beer. lant to respondent which was the subject-mat- properly pleaded; and, secondly, that the ter of the contract and deed involved in the facts established did not warrant the relief former litigation. A statement of the facts sought, even though that issue had been propout of which this litigation arose appear in erly tendered by the pleadings. Whatever

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