McFarland, J.
Thisaction was brought to have it decreed that a certain conveyance of lands by plaintiff to defendant created a mere naked legal trust, and to compel defendant to convey said lands to plaintiff. Defendant interposed a general demurrer to the complaint, which was sustained; and plaintiff declining to amend, final judgment was rendered for defendant. Plaintiff appeals from the judgment.
The conveyance referred to is dated January 23,1891, and is an ordinary grant, bargain, and sale deed, by which, for ’a named consideration of five thousand dollars, the plaintiff conveys to the defendant, in fee-simple, certain lots of land in the city of Eureka. It was duly acknowledged and recorded. At the same time, defendant executed a written instrument, which, after reciting that plaintiff had conveyed said lots to defendant in trust, proceeds as follows: “I hereby accept such trust, and hereby agree to carry out the terms thereof as the same appear in that certain declaration of trust set forth and contained in the last will and testament of the said Kopp, this day made, which said declaration of trust is hereby referred to and made a part hereof.”
On the same day, plaintiff made his will, in which, after providing for the expenses of his last sickness, funeral, etc., he gives all the residue of his estate to one Regine Wagner. The will then proceeds as follows: “ Having this day made, executed, and delivered unto Robert Gunther a deed conveying to him lots one and eight in block thirty-six, and the southwest quarter of block ninety-four, in the city of Eureka, according to [72] the official map of said city, said property being conveyed to him in trust, to be held, managed, encumbered, or disposed of in accordance with certain directions by me given to him, the said Gunther, — now, in order to avoid any uncertainty in relation to said trust, I hereby declare said trust to be as follows, to wit: 1. That said Gunther is to hold and manage said real property from this date henceforth in such manner as he may deem best; and upon my death he is at once to pay, or cause to be paid, from out said trusj; property, the following amounts, to wit, to Catarina Kopp [and five other persons] the sum of one hundred dollars each; 2. To cause to be erected over my grave a tombstone, to cost about $150; 3. Any money the said Gunther shall pay out for said property, either for taxes, insurance, or otherwise, and any and all sums of money he may advance or loan to me between this date and the time of my death, are to be considered a preferred charge on said lands; and the said Gunther is to first reimburse himself for such amounts so paid from said trust property; 4. Upon the payment of the foregoing, and such additional sums as the said Gunther may deem a reasonable compensation for his services as such trustee, he, the said Gunther, is to at once convey said property as follows, to wit: Unto Kegine Wagner the said lots one and eight of block thirty-six; and unto Augusta Wagner, the sister of the said Kegine, the said southwest quarter of block ninety-four; 5. Should it be necessary or expedient to sell or encumber said property in order to carry out said trust, said trustee has full power so to do, it being left to his discretion to so act in relation thereto that the diminution in value suffered by said trust property by reason thereof will be borne proportionately by the respective shares of the said Kegine and Augusta Wagner. I here expressly state that the said trust property so conveyed as aforesaid forms no portion of my estate herein by this my last will disposed of, nor is it my wish or desire that said trust property be administered upon in probate.”
The substantial averments of the complaint are these: [73] The plaintiff, at the time of the execution of these instruments, was advanced in years and in feeble health, and was “ harassed by an unconscionable suit ” brought against him by a woman who wanted damages for an alleged breach of promise of marriage. “ Being oppressed by illness and anxiety about said suit,” he sought the advice of defendant, in whom he had confidence, and under these circumstances, and “being thereto advised by defendant,” he executed the said instruments. “ In the execution of said instruments, plaintiff understood and believed that he was making a testamentary disposition of his property; and he did not understand thereby nor intend thereby to place said real estate nor any portion of his property beyond his control, or other disposition thereof; said deed expresses a consideration of five thousand dollars; no consideration was paid, and it was executed “solely for the purpose of securing defendant for small amounts of money to be loaned to plaintiff by defendant, and as a part of his last will as aforesaid.” Since then, “ said unconscionable suit for breach of promise of marriage has been tried, and judgment thereon was, on the fourteenth day of March, 1891, duly given and made in favor of this plaintiff (defendant in said action) for his costs.” It is further averred that “ plaintiff has revoked said will and every part thereof, and has also revoked the naked trust, if any, created by said conveyance.” It is also averred that defendant had advanced to plaintiff about three hundred dollars; that plaintiff has offered to pay said sum, and is ready to pay any other indebtedness which may be found due defendant; has demanded a reconveyance and tendered to defendant a deed to be executed by him; but that defendant has refused to execute such deed, and claims to hold the legal title for the benefit of said Regine and Augusta Wagner.
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McFarland, J.
Thisaction was brought to have it decreed that a certain conveyance of lands by plaintiff to defendant created a mere naked legal trust, and to compel defendant to convey said lands to plaintiff. Defendant interposed a general demurrer to the complaint, which was sustained; and plaintiff declining to amend, final judgment was rendered for defendant. Plaintiff appeals from the judgment.
The conveyance referred to is dated January 23,1891, and is an ordinary grant, bargain, and sale deed, by which, for ’a named consideration of five thousand dollars, the plaintiff conveys to the defendant, in fee-simple, certain lots of land in the city of Eureka. It was duly acknowledged and recorded. At the same time, defendant executed a written instrument, which, after reciting that plaintiff had conveyed said lots to defendant in trust, proceeds as follows: “I hereby accept such trust, and hereby agree to carry out the terms thereof as the same appear in that certain declaration of trust set forth and contained in the last will and testament of the said Kopp, this day made, which said declaration of trust is hereby referred to and made a part hereof.”
On the same day, plaintiff made his will, in which, after providing for the expenses of his last sickness, funeral, etc., he gives all the residue of his estate to one Regine Wagner. The will then proceeds as follows: “ Having this day made, executed, and delivered unto Robert Gunther a deed conveying to him lots one and eight in block thirty-six, and the southwest quarter of block ninety-four, in the city of Eureka, according to [72] the official map of said city, said property being conveyed to him in trust, to be held, managed, encumbered, or disposed of in accordance with certain directions by me given to him, the said Gunther, — now, in order to avoid any uncertainty in relation to said trust, I hereby declare said trust to be as follows, to wit: 1. That said Gunther is to hold and manage said real property from this date henceforth in such manner as he may deem best; and upon my death he is at once to pay, or cause to be paid, from out said trusj; property, the following amounts, to wit, to Catarina Kopp [and five other persons] the sum of one hundred dollars each; 2. To cause to be erected over my grave a tombstone, to cost about $150; 3. Any money the said Gunther shall pay out for said property, either for taxes, insurance, or otherwise, and any and all sums of money he may advance or loan to me between this date and the time of my death, are to be considered a preferred charge on said lands; and the said Gunther is to first reimburse himself for such amounts so paid from said trust property; 4. Upon the payment of the foregoing, and such additional sums as the said Gunther may deem a reasonable compensation for his services as such trustee, he, the said Gunther, is to at once convey said property as follows, to wit: Unto Kegine Wagner the said lots one and eight of block thirty-six; and unto Augusta Wagner, the sister of the said Kegine, the said southwest quarter of block ninety-four; 5. Should it be necessary or expedient to sell or encumber said property in order to carry out said trust, said trustee has full power so to do, it being left to his discretion to so act in relation thereto that the diminution in value suffered by said trust property by reason thereof will be borne proportionately by the respective shares of the said Kegine and Augusta Wagner. I here expressly state that the said trust property so conveyed as aforesaid forms no portion of my estate herein by this my last will disposed of, nor is it my wish or desire that said trust property be administered upon in probate.”
The substantial averments of the complaint are these: [73] The plaintiff, at the time of the execution of these instruments, was advanced in years and in feeble health, and was “ harassed by an unconscionable suit ” brought against him by a woman who wanted damages for an alleged breach of promise of marriage. “ Being oppressed by illness and anxiety about said suit,” he sought the advice of defendant, in whom he had confidence, and under these circumstances, and “being thereto advised by defendant,” he executed the said instruments. “ In the execution of said instruments, plaintiff understood and believed that he was making a testamentary disposition of his property; and he did not understand thereby nor intend thereby to place said real estate nor any portion of his property beyond his control, or other disposition thereof; said deed expresses a consideration of five thousand dollars; no consideration was paid, and it was executed “solely for the purpose of securing defendant for small amounts of money to be loaned to plaintiff by defendant, and as a part of his last will as aforesaid.” Since then, “ said unconscionable suit for breach of promise of marriage has been tried, and judgment thereon was, on the fourteenth day of March, 1891, duly given and made in favor of this plaintiff (defendant in said action) for his costs.” It is further averred that “ plaintiff has revoked said will and every part thereof, and has also revoked the naked trust, if any, created by said conveyance.” It is also averred that defendant had advanced to plaintiff about three hundred dollars; that plaintiff has offered to pay said sum, and is ready to pay any other indebtedness which may be found due defendant; has demanded a reconveyance and tendered to defendant a deed to be executed by him; but that defendant has refused to execute such deed, and claims to hold the legal title for the benefit of said Regine and Augusta Wagner.
; The demurrer was properly sustained. The complaint contains no averments of undue influence, fraud, or any other of the ordinary grounds upon which the avoidance of solemn conveyances of property is usually based. [74] It goes upon the theory that the deed was part of the will, and that plaintiff, by revoking the latter, annulled the former. But this clearly was not so. The revocation of the will released from its operation all property which would have been devised or bequeathed thereby if the testator had died without making the revocation. But the plaintiff in the will did not devise, or attempt to devise, the property conveyed by the deed; on the contrary, the latter was expressly excepted from the will, in which it was expressly stated that “the said trust property so conveyed as aforesaid forms no portion of my estate herein by this my last will disposed of.” It is true that the instrument in which the will was written also contained a declaration of trust, to which the acceptance of the trust by defendant referred; but the declaration of trust was as effective after the revocation of the will as before, and would have been equally effective if the will had .never been valid as a will; that is, if for want of proper attestation, or from some other defect, it had never been legally executed. The deed is not part of the will, but the declaration of trust contained in it is referred to in the deed for the purpose of showing the nature of the trust. A present interest passed to defendant; he received the title in fee, with full power to control, to encumber, or to sell ihe property. It was a voluntary trust without power of revocation; and the averment of want of consideration is immaterial. (Code Civ. Proc., secs. 863, 1040, 2216.) The averment of a mistake of law does not bring the case within that extreme class of mistakes of law from which equity will relieve. (Civ. Code, sec. 1578; Goodenow v. Ewer, 16 Cal. 471; 76 Am. Dec. 540; Kenyon v. Welty, 20 Cal. 640; 81 Am. Dec. 137; Burt v. Wilson, 28 Cal. 638; 87 Am. Dec. 142.) Moreover, it is apparent upon the face of the complaint that plaintiff did exactly what he intended to do. It is also clear that one of the main purposes of the deed was to put plaintiff’s'property beyond the reach of an unfavorable judgment on the pending action for breach of marriage, — which, of [75] course, could not have been effected by a mere testamentary disposition of said property.
The judgment is affirmed.
Garoutte, J., Sharpstein, J., Paterson, J., Harrison, J., and De Haven, J., concurred.
Rehearing denied.