DAVENPORT v. DAVENPORT FOUNDATION (1950)

From a judgment in favor of defendants after trial before the court without a jury in an action to have (1) a declaration of trust declared invalid and (2) a bank account held to be the property of the heirs of Levi M. Davenport, plaintiffs appeal.

Facts

On May 23, 1939, Levi M. Davenport executed a declaration of trust¹ by which he conveyed certain property to La Verne College, a corporation, as trustee. The trustee was given only ministerial duties. The management of the trust, to be known as the ‘Davenport Foundation’, was committed to a board of directors of five named persons who were to constitute the board of trustees of the foundation. The trust provided:

‘Reserves

‘Before distribution is made of any of the net income reserves shall be set aside as follows, to-wit:

‘(1) 25% of the gross income for taxes, supervision and upkeep.

‘(2) 12% of the gross income for replacements and betterments.

‘Distribution of Income.

‘All the net income available for distribution shall be paid in monthly installments as follows:

‘(1) To the Trustor, Levi M. Davenport, the sum of Four Hundred Dollars ($400.00) per month, for and during the term of his natural life.

‘(2) To La Verne College, a corporation, the sum of Three Hundred Dollars ($300.00) per month for the purpose of establishing a department of Philosophy and Religion, which department shall be established at the beginning of the school year 1939–1940.

‘(3) To make suitable and proper provisions for the support and maintenance of J. R. Davenport, my brother, as his needs may require, not to exceed however, One Hundred Dollars ($100.00) per month, all of which shall be at the sole discretion of the Board of Trustees. In the event that any of my children should come to want, the Board of Trustees shall use a portion of the income to care for them in so far as their needs may require, all of which shall also be solely within the discretion of the Board of Trustees.

‘(4) To American Bible Society, with its principal office at Bible House, New York City, the sum of Three Hundred Dollars ($300.00), per annum, payable annually at the discretion of the Board.

‘(5) To the payment of annuities in such amounts as may be agreed upon between the Board of Trustees and the annuitants, who may add to this Trust.

‘(6) All of the rest and residue of undistributed income shall be used by the Board of Trustees for such purposes consistant with the purposes of this trust as may be determined in the sole discretion of said Board of Trustees.

‘The courses to be given and taught by said department of Philosophy and Religion, shall be along the general line of the following suggested program: * * *’ [Here follows a list of proposed subjects to be taught in the department of Philosophy and Religion—orientation of students to the life of the school, church history, the Bible as a basic part of education, evangelical philosophy, ethics, psychology and philosophy of religion, all of which are described in detail in the Declaration of Trust, footnote 1.]

After expressing the trustor's desire that one of his children or grandchildren should serve on the board, the trust continued:

‘The Elders body of the Church of the Brethren of the District of Southern California and Arizona shall pass upon and determine the qualifications and fitness of any of my children or grandchildren, for service on said Board of Trustees, and none of my children or grandchildren shall serve upon said Board unless said Elders body shall determine that he or she is a fit and qualified person for such service. After the death of all of my children and grandchildren, such vacancies shall be filled in the same manner as provided herein for the election of the other members of the Board, and the person appointed as herein provided shall be a member of the Church of the Brethren.

‘All other vacancies on said Board shall be filled by nominations made by the Board of Trustees and submitted to the Elders Body of the Church of the Brethren of the District of Southern California and Arizona, from which nominations the Elders body shall fill said vacancies unless said body should determine that none of the nominees are qualified, in which event the Board of Trustees shall make further and additional nominations, from which the Elders body may fill such vacancies. All the persons elected by the Elders Body as aforesaid to said Board of Trustees, or appointed as herein provided, shall be persons who can by their life and conduct subscribe to the following: * * *’ [Then follow paragraphs numbered 1 to 11, inclusive, in the Declaration of Trust, footnote 1.]

‘Removal from the Board of Trustees

‘Should any of the members of the Board of Trustees for any cause or reason become unfit to serve on the Board or become ethically, or scripturely embroiled in the evil things of this world, the remaining members of the Board may file a complaint with the Elders Body of the Church of the Brethren of the District of Southern California and Arizona. A time and place for hearing the complaint shall be set and the decisions of said Elders bodies shall be final. The procedure in matters of removal shall be establish by the Elders body.’

The trustor reserved for life the use of his home property and made provisions for compensating the trustees for their services. The agreement then proceeded:

‘We hope and pray that all those having to do with the management of this Foundation will have the sacrificial Spirit. Thus the work will grow and prosper, God will be glorified and our Lord will be lifted up before a dying world.

‘Additions to the Foundation

‘Others may add to this Foundation, provided the additional income shall be used in maintaining the Doctrines and Principles of our church, as herein set forth, provided however, that the donor may reserve a portion of such income for himself or herself, or for relatives during his, her, or their lifetime.

‘Change of Beneficiary

‘Should La Verne College fail to establish such department of Philosophy and Religion, and to carry out the teachings as herein enunciated, or should it be merged into or consolidated with any other Educational or Charitable Institution, or cease to exist as an institution of learnings, the Trustees shall pay the income herein provided to be paid to it, to some other institution, or institutions, within our denomination as determined by said Board, and in such event the Board of Trustees shall designate some other Trustee, or Trustees to hold title to the Trust Estate and La Verne College, or its last Board of Trustees, shall convey the title of the Trust Estate to such new Trustee so designated by said Board.’

Customary administrative powers were conferred on the Board of Trustees. It was authorized to consult with the trustor with regard to the extent of its power and exonerated from liability if it followed his instructions. The board was authorized to incorporate the foundation after the death of the trustor and the individual beneficiaries named, in which event the board was to convey the trust estate to the corporation. The agreement concludes:

‘In the event that any provision or provisions of this instrument are or are adjudged to be for any reason unenforceable the remainder hereof, disregarding such provisions, shall subsist and be carried into effect.

‘This trust may not be revoked nor, except as otherwise herein provided may any of the corpus of the trust estate be withdrawn.’

After the declaration of trust had been executed the trustor conveyed various parcels of real property to La Verne College. July 8, 1940, the Davenport Foundation was incorporated under Division 1, Part IV, Title XII, Article I of the Civil Code. Thereafter the title to the property held by La Verne College which had been conveyed to it by the trustor was deeded to the Davenport Foundation.

On November 23, 1946, the trustor transferred money in a personal bank account amounting to $9,123.61 to a joint account with defendant J. E. Steinour. At this time the trustor signed a document entitled ‘Directive'² which directed the Davenport Foundation to set aside sufficient funds to hold $1,000 each in the interest of tweleve named relatives from the money in his personal bank account, the purpose being to have the foundation allot to each person a portion of the $1,000 if needed. The balance in the account on the date of the trustor's death January 6, 1947, was $7,509.39.

Findings

The trial court found that (1) the trust agreement created a valid charitable trust, (2) the joint tenancy bank account between the trustor and defendant Steinour created a valid trust of which defendant Steinour was the trustee, and (3) the beneficiaries of the trust were the individuals named in the directive and that the remainder after the death of the trustor should go to the Davenport Foundation.³

Questions

First: Did the agreement of May 23, 1939 create a charitable trust?

This question must be answered in the affirmative and is governed by these pertinent rules of law:

(1) The duty of the court in interpreting a declaration of trust is to determine the intention of the trustor from the instrument read as a whole, and to give effect thereto if possible. (Brock v. Hall, 33 Cal.2d 885, 887, 206 P.2d 360; Dumaine v. Dumaine, 301 Mass. 214, 16 N.E.2d 625, 629, 118 A.L.R. 834.)

(2) A gift for a charitable purpose is favored and the language in an instrument will be liberally construed in support of a trust established for such a purpose. (In re Estate of Hood, 57 Cal.App.2d 782, 786, 135 P.2d 383; see also, In re Estate of McDole, 215 Cal. 328, 334, 10 P.2d 75; In re Estate of Henderson, 17 Cal.2d 853, 857, 112 P.2d 605; Collier v. Lindley, 203 Cal. 641, 655, 266 P. 526; In re Durbrow's Estate, 245 N.Y. 469, 157 N.E. 747, 748.)

(3) A grant of authority to trustees of a charitable trust to choose the beneficiaries is valid. (In re Estate of Bunn, 33 Cal.2d 897, 901, 206 P.2d 635.)

(4) The creation in one instrument of a trust for charitable and noncharitable purposes does not invalidate the charitable trust providing that the noncharitable part does not violate the rule against perpetuities or restraint on alienation. (Dingwell v. Seymour, 91 Cal.App. 483, 499, 297 P. 327. See Restatement of the Law of Trusts (1935) Vol. 2, p. 1229, section 401.)

(5) A provision for the withholding or accumulating of income in an otherwise valid trust does not invalidate it (Sec. 2220, Civil Code; Hutchins v. Security Trust and Savings Bank, 208 Cal. 463, 468 et seq., 281 P. 1026, 65 A.L.R. 1059; Frazier v. Merchants National Bank, 296 Mass. 298, 5 N.E.2d 550, 551; Perkins v. Citizens & Southern National Bank, 190 Ga. 29, 8 S.E.2d 28, 36.)

(6) Decisions based on provisions of federal tax laws are not binding upon state courts where other than tax questions are involved. (Commissioner v. Tower, 327 U.S. 280, 287, 66 S.Ct. 532, 90 L.Ed. 670, 164 A.L.R. 1135.)

(7) A trustor may name himself as a trustee of an express trust. (Noble v. Learned, 153 Cal. 245, 251, 94 P. 1047. Cf. Restatement of the Law of Trusts (1935) Vol. 1, p. 120, sec. 37, comment a; Reinecke v. Northern Trust Co., 278 U.S. 339, 346, 49 S.Ct. 123, 73 L.Ed. 410, 66 A.L.R. 397.)

Applying the foregoing rules to the facts of the instant case it is perfectly clear from a reading of the declaration of trust that the trustor intended to create a charitable trust reserving unto himself a life estate in his residence and an annuity of $400 a month. If the instrument therefore creates a charitable trust it does not violate the rule against perpetuities since Article 20, section 9, of the constitution expressly excepts charitable trusts from the inhibitions of such rule. The fact that the trust permitted the trustees under certain circumstances to select the beneficiaries did not invalidate it. (See rule 3, supra.)

Since a charitable trust may be created even though there are certain noncharitable purposes included in the trust (see rule 4, supra) the question is then presented as to whether the noncharitable uses are specific. We believe they are: (a) the reservation of an annuity to the trustor of $400 per month for his life is clear and specific; (b) the provision in the trust agreement reading, ‘All the net income available for distribution shall be paid in monthly installments as follows: (5) To the payment of annuities in such amounts as may be agreed upon between the Board of Trustees and the annuitants, who may add to this Trust,’ must be read in conjunction with the further provision of the trust agreement, ‘Others may add to this Foundation, provided the additional income shall be used in maintaining the Doctrines and Principles of our church, as herein set forth, provided however, that the donor may reserve a portion of such income for himself or herself, or for relatives during his, her, or their lifetime.’ The last quoted provision is a definite limitation on the annuity provisions previously set forth, it being evident that the trustor intended and so stated in the declaration of trust that others who might add to the Foundation could reserve from the donation which they made a valid annuity and did not destroy the charitable character of the trust. The mere fact that some trustee or some person in connection with the trust might enter into an invalid or illegal agreement would not destroy the validity of the trust as created by the trustor.

The possibility that contributions might be made at some very distant date by which an annuity would be reserved to the donor likewise would not invalidate the trust as created because such contributions and any annuity would have to comply with the law in existence at the time of the contribution and agreement for an annuity.

There is likewise no merit in the contention that the trust is not a charitable one because it provides: ‘Before distribution is made of any of the net income reserves shall be set aside as follows to-wit: (1) 25% of the gross income for taxes, supervision and upkeep. (2) 12% of the gross income for replacements and betterments.’ Under rule 5, supra, the trustees under a charitable trust may be authorized to accumulate income from a trust fund without destroying the charitable nature of the trust. This is perfecty logical since the absolute power of alienation may be suspended in perpetuity in the case of a charitable trust. There is no difference in principle in permitting the accumulation of trust funds indefinitely so long as it is for a charitable purpose.

The fact that in determining the taxability of the funds of the Foundation for the years 1940–1944, the Federal Tax Court held that they were not exempt under sections 101(6) and 101(4) of the Internal Revenue Code, 26 U.S.C.A. § 101(4, 6), is not binding upon the state courts. (See rule 6, supra.)

There is no merit in the contention of appellants that since the trustor consulted with and exercised power and influence over the trustees so as to direct the management of the trust it was not in effect a trust, and that the transfers which he made were merely colorable. Under rule 7, supra, it is evident that the trustor might have even gone further and named himself as a trustee thereby having the absolute management and control of the property, and that such fact would not have destroyed the charitable character of the trust. If the instrument as in the present case legally conveyed title to the property in trust for the benefit of a named beneficiary a valid trust was created and the fact that the trustor reserved to himself the right to manage the trust or exercised an influence and direction in consultation with the named trustees did not destroy the character of the trust as a valid charitable trust. (Tennant v. John Tennant Memorial Home, 167 Cal. 570, 579, 140 P. 242.)

Finally appellants contend that the provisions reading, ‘To make suitable and proper provision for the support and maintenance of J. R. Davenport, my brother, as his needs may require, not to exceed however, One Hundred Dollars ($100.00) per month, all of which shall be at the sole discretion of the Board of Trustees. In the event that any of my children should come to want, the Board of Trustees shall use a portion of the income to care for them in so far as their needs may require, all of which shall also be solely within the discretion of the Board of Trustees,’ violates the rule against perpetuities because the trustor, a man seventy-seven years of age, could have intended to provide for his needy children not then in being, is devoid of merit for the reason that even though we concede this construction, such provision would have to be disregarded under the very terms of the trust which reads, ‘In the event that any provision or provisions of this instrument are of are adjudged to be for any reason unenforceable the remander hereof, disregarding such provisions, shall subsist and be carried into effect.’ (See also, In re Estate of Troy, 214 Cal. 53, 59, 3 P.2d 930; In re Estate of Gump, 16 Cal.2d 535, 547, 107 P.2d 17.)

Authorities of Appellant. In re Estate of Sutro, 155 Cal. 727, 730, 102 P. 920, 921, is distinguishable from the present case for the reason that the trust created in the cited case was for ‘such charities, institutions of learning and science and for premiums to be set apart of distinguished scholarships and scientific discovery and inventions as shall be directed by my executors.’ Clearly as pointed out by the court there was nothing in the will creating the trust to show that the purposes for which the trust fund was to be used were charitable excepting the use of the words, ‘religious', ‘educational’ and ‘eleemosynary’. This of itself distinquishes the case from the present one where a reading of the declaration of trust shows an overwhelming desire on the part of the trustor to create a charitable trust.

In re Estate of Vance, 118 Cal.App. 163, at page 164, 4 P.2d 977, at page 978 is likewise inapplicable as is shown by this statement of the court: ‘There is not one word to indicate an object of the distribution, which would serve as a guide and check on its character; nor a hint as to the class of beneficiaries, which would serve to limit the distribution to persons or institutions serving a charitable purpose.’

In re Estate of Kline, 138 Cal.App. 514, 32 P.2d 677, was decided upon the finding by the court that the trust was ambiguous. The trust in the instant case is free from ambiguity. Therefore this case is not here in point.

Second: Was the trial court in error in holding that the joint bank account opened by Mr. Davenport and defendant Steinour created a valid trust upon the death of Mr. Davenport?

This question must be answered in the negative. The evidence disclosed that Mr. Davenport desired to have this bank account held in trust for the benefit of the persons named in his directive of November 23, 1946, should they be in special need, and that Mr. Steinour accepted this trust. Therefore we have a factual situation where the trustor intended to create a trust, the subject of which was identified with certainty, as were the beneficiaries and the purpose of the trust, also that the trustee accepted the trust. Hence the trial court's finding in accordance with these facts was proper.

In re Estate of Alberts, 38 Cal.App.2d 42, 100 P.2d 538, is not here applicable because in the Alberts case the court found that at the time the funds in question were transferred the grantors' intent was to make a gift rather than to create a trust. In the present case the trial court's finding was that the trustor intended to create a trust.

Since, however, defendant Davenport Foundation filed a disclaimer of any interest in the fund, the judgment should be modified to award the remainder interest in the joint bank account to the heirs at law of Levi M. Davenport.

As thus modified the judgment is affirmed.

FOOTNOTES

1.  The declaration of trust read as follows:‘Declaration of Trust‘No. 1‘Know All Men By These Presents:‘This Agreement made and entered into this 23rd day of May, 1939, by and between Levi M. Davenport of 674 Elliot Drive, Pasadena, California, hereinafter referred to as Trustor, and La Verne College, a corporation, incorporated under Title XVII Part 4, Division 1 (Sections 649 to 651) Civil Code of the State of California, hereinafter referred to as Trustee, and C. Ernest Davis, Lucile Davenport Weller, J. E. Steinour, Fred A. Flora and L. E. Miller, constituting a Board of Directors, hereinafter referred to as the Board.‘Witnesseth: That‘Whereas, the Trustor is desirous of establishing a permanent foundation to be known as ‘The Davenport Foundation’ for the purposes hereinafter provided.‘Now Therefore, the Trustee hereby declares that the Trustor has transferred and delivered to it without consideration moving from the Trustee all his right, title and interest in and to the property described in Schedule ‘A’ hereto attached and by this reference made a part hereof.‘All property now, or hereafter, subject to this Trust shall constitute the Trust Estate.’‘The only duty, or obligation of the Trustee shall be to hold Title to the Trust Estate in Trust, subject to the management, control and direction of the Board. Its duties shall be entirely Ministerial, that is to say, it shall perform such acts as shall be necessary to carry out the orders and directions of the Board.‘The Board shall act as and constitute the Board of Trustees of the Foundation and shall have complete control, management, and operation of the property forming the Trust Estate, and shall receive and collect the principal and the income of the Trust Estate, and after the payments and deductions hereinafter mentioned, shall pay and/or accumulate, and/or use and invest, hold, apply and distribute the same to, or for the purposes hereinafter stated, and shall cause the Trustee to convey and transfer the corpus or principal, or portions of the Trust Estate, together with accumulations, if any, as hereinafter provided.‘Reserves‘Before distribution is made of any of the net income reserves shall be set aside as follows to-wit:‘(1) 25% of the gross income for taxes, supervision and upkeep.‘(2) 12% of the gross income for replacements and betterments.‘Distribution of Income‘All the net income available for distribution shall be paid in monthly installments, as follows:‘(1) To the Trustor, Levi M. Davenport, the sum of Four Hundred Dollars ($400.00) per month, for and during the term of his natural life.‘(2) To LaVerne College, a corporation, the sum of Three Hundred Dollars ($300.00) per month for the purpose of establishing a department of Philosophy and Religion, which department shall be established at the beginning of the school year 1939–1940.‘(3) To make suitable and proper provision for the support and maintenance of J. R. Davenport, my brother, as his needs may require, not be exceed however, One Hundred Dollars ($100.00) per month, all of which shall be at the sole discretion of the Board of Trustees. In the event that any of my children should come to want, the Board of Trustees shall use a portion of the income to care for them in so far as their needs may require, all of which shall also be solely within the discretion of the Board of Trustees.‘(4) To American Bible Society, with its principal office at Bible House, New York City, the sum of Three Hundred Dollars ($300.00), per annum, payable annually at the discretion of the Board.‘(5) To the payment of annuities in such amounts as may be agreed upon between the Board of Trustees and the annuitants, who may add to this Trust.‘(6) All of the rest and residue of undistributed income shall be used by the Board of Trustees for such purposes consistent with the purposes of this trust as may be determined in the sole discretion of said Board of Trustees.‘The courses to be given and taught by said department of Philosophy and Religion, shall be along the general line of the following suggested program: ‘Orientation‘Chapel lectures and services designed to help the student adjust himself in a Christian manner to life in the school and in the world. History of‘The Church,‘The Church of the Brethern,‘Religion,‘Religious Education, all of which shall be taught from the Christian point of view.‘Bible‘Sound courses in the Word of God shall be the basis of the work in the whole department and should be regarded as a basic part of one's education at LaVerne College.‘Philosophy‘Strong courses that will give the student an evangelical, theistic point of view and unify his ideas into a harmonious Christian faith. Such courses as Ethics, the Phychology of religion, Philosophy of Religion, and the Philosophy of the Christian Religion will be included.‘Religious Education‘Courses that will help one to become an intelligent, capable worker in the Church's great program of Christian instruction.‘Sociology‘Religion applied to life, to help the student to think through the practical application of the principles and teachings of the word of God as exemplified in Scriptures to the problem of our modern world, one particular addition that we desire to be made to our present offerings in this field is a good course of Rural Sociology. We need this because we have so many country churches in our brotherhood. The country is suffering throughout America today. Something needs to be done for rural life and it is a problem in which even our State and National governments are interested.‘A Practical Work Program‘To give opportunity for selected students to serve as Sunday School teachers, club leaders for boys and girls, mission workers, etc., in a program of church work and home mission, this program to be developed perhaps in cooperation with our District Mission Board or other agencies. All teaching shall be in harmony with the philosophy of creation, according to the account in the Book of Genesis, Chapters 1 and 2.‘Vacancies on Board of Trustees‘It is my desire that one of my children, and after they have passed on to their reward, one of my grandchildren, shall serve on the Board of Trustees, and any vacancy on said Board caused by the death of my daughter, Lucile, or any of my children, or grandchildren, shall be filled by the Board from among my surviving children and grandchildren. The Elders body of the Church of the Brethren of the District of Southern California and Arizona shall pass upon and determine the qualifications and fitness of any of my children or grandchildren, for service on said Board of Trustees, and none of my children or grandchildren shall serve upon said Board unless said Elders body shall determine that he or she is a fit and qualified person for such service. After the death of all of my children and grandchildren, such vacancies shall be filled in the same manner as provided herein for the election of the other members of the Board, and the person appointed as herein provided shall be a member of the Church of the Brethren.‘All other vacancies on said Board shall be filled by nominations made by the Board of Trustees and submitted to the Elders Body of the Church of the Brethren of the District of Southern California and Arizona, from which nominations the Elders body shall fill said vacancies unless said body should determine that none of the nominees are qualified, in which event the Board of Trustees shall make further and additional nominations, from which the Elders body may fill such vacancies. All the persons elected by the Elders Body as aforesaid to said Board of Trustees, or appointed as herein provided, shall be persons who can by their life and conduct subscribe to the following:‘1. The Divine Authority and the full and complete inspiration of the whole of the Old and New Testament Scriptures.‘2. The Deity of our Lord Jesus Christ.‘3. The Doctrine of the Trinity.‘4. The Fall of Man and his consequent depravity and the necessity of the New Birth.‘5. The sinless life of Jesus Christ, Atonement in His blood which was shed for sin, and His personal Resurrection.‘6. Justification by faith in our Lord Jesus Christ.‘7. Regeneration by the Word and the agency of the Holy Spirit.‘8. The personality of the Holy Spirit and as the Divine Paracelete, the Comforter and the Guide of the people of God.‘9. Sanctification through the Word and Spirit.‘10. The Personal and Visible Return of our Lord Jesus Christ, the Resurrection of the Dead, and the last judgment.‘11. That the Scriptures of the Old and New Testaments are inspired of God, and are inerrant in the original writings, and that they are the supreme and final authority in faith and life, and who believe in one God, eternally existing in three persons, Father, Son, and Holy Spirit; that Jesus was begotten by the Holy Spirit, and born of the Virgin Mary, and is true God and true Man, that he sinned and thereby incurred not only physical death, but also that spiritual death which is separation from God; that the Lord Jesus Christ atoned for our sins according to the Scriptures, and all that believe on him, and are Baptised by Water and of the Spirit are justified by the blood that He shed on the Cross of Calvary; that Jesus was crucified, rose from the dead, and is now seated at the right hand of the Father interceding for us as our High priest and advocate; who believe in the personal and imminent return of our Lord and Saviour Jesus Christ according to the Scriptures; and believe in the bodily resurrection of the just and the unjust.‘Removal from the Board of Trustees‘Should any of the members of the Board of Trustees for any cause or reason become unfit to serve on the Board or become ethically, or scripturely embroiled in the evil things of this world, the remaining members of the Board may file a complaint with the Elders Body of the Church of the Brethren of the District of Southern California and Arizona. A time and place for hearing the complaint shall be set and the decision of said Elders bodies shall be final. The procedure in matters of removal shall be established by the Elders body.‘Reservations‘It is understood and agreed that during the lifetime of the Trustor, Levi M. Davenport, that the Trustor shall have the right to the use and occupation, rent free, of the home now occupied by him at 674 Elliot Drive, Pasadena, California, or some other home of similar rental value.‘Compensation of Trustees‘The members of the Board of Trustees shall be paid for their services at the same rate as is paid at the time for comparable services and actual expenses incurred. The amount shall be fixed by the Board.‘We hope and pray that all those having to do with the management of this Foundation will have the sacrificial Spirit. Thus the work will grow and prosper, God will be glorified and our Lord will be lifted up before a dying world.‘Additions to the Foundation‘Others may add to this Foundation, provided the additional income shall be used in maintaining the Doctrines and Principles of our church, as herein set forth, provided however, that the donor may reserve a portion of such income for himself or herself, or for relatives during his, her, or their lifetime.‘Change of Beneficiary‘Should LaVerne College fail to establish such department of Philosophy and Religion, and to carry out the teachings as herein enunciated, or should it be merged into or consolidated with any other Educational or Charitable Institution, or cease to exist as an institution of learing, the Trustees shall pay the income herein provided to be paid to it, to some other institution, or institutions, within our denomination as determined by said Board, and in such event the Board of Trustees shall designate some other Trustee, or Trustees to hold title to the Trust Estate and LaVerne College, or its last Board of Trustees, shall convey the title of the Trust Estate to such new Trustee so designated by said Board.‘Powers of Trustees‘To carry out the express purposes of this trust and in aid of its execution and the proper administration, management and disposition of the trust estate, the Board of Trustees is vested with the following additional powers and discretions.‘At its option and as long as it may deem advisable, to retain any property which it may receive hereunder. To manage, control, sell, convey, partition, divide, subdivide, exchange, improve, repair and to encumber by mortgage, trust deed or otherwise and in such manner and in accordance with such procedure as it may deem advisable, the trust estate or any part thereof. To lease the trust estate, or any part thereof, and to grant the right to mine or drill for and remove therefrom gas, oil, and/or any other minerals. To invest the principal (and income if accumulated) in any property, whether or not permissible by law as investment for trust funds. To determine, in its discretion, what is principal of the trust estate, gross income, or net distributable income therefrom; except that all bonuses, royalties and recoveries from mines, gas or oil leases and/or wells, all stock dividends and stock rights, and all gain or loss realized on payment, retirement or sale of stocks, notes, bonds or other securities shall inure to or fall upon principal, and all cash dividends (other than liquidating dividends stated in writing to be such by the corporation paying the same) shall go to income of the trust estate. To have respecting bonds, shares of stock and other securities, all the rights, powers and privileges of an owner, including, though without limiting the foregoing, voting, giving proxies, payment of calls, assessments and other sums deemed by the Board expedient for the protection of the interests of the trust estate, exchanging securities, selling or exercising stock subscription or conversion rights, participating in foreclosures, reorganizations, consolidations, mergers, liquidations, pooling agreements, voting trusts, assenting to corporate sales, leases and encumbrances. All discretions in this trust conferred upon the Board of Trustees shall, unless specifically limited, be absolute and uncontrolled and their exercise conclusive on all persons interested in this trust or the trust estate. The powers and discretions of the Board enumerated herein are not to be construed as a limitation upon its general powers and discretions but the Board of Trustees in addition thereto is hereby vested with and shall have, for the full duration of this trust, as to the trust estate, the income therefrom, and in the execution of this trust, the same and all the powers and discretions that an absolute owner of property has or may have. The right to encumber the trust estate shall be limited to 10% of the gross value thereof.‘The whole title, legal and equitable, in fee, to the trust estate is and shall be vested in the Trustee as such title in the Trustee is necessary for the due execution of this trust by the Board of Trustees as herein provided. The beneficiaries, except as herein provided take no estate or interest therein and their interests hereunder are personal property only, consisting of the right to enforce the due performance of this trust.‘Each beneficiary hereunder is hereby restrained from anticipating, encumbering, alienating or in any other manner assigning his or her, or its interest or estate in either principal or income, and is without power so to do, nor shall such interest or estate be subject to any beneficiary's obligations or liabilities, nor to judgment or other legal process, bankruptcy proceedings or claims of creditors or others.‘The Board of Trustees in its sole discretion may advise or consult with the Trustor regarding the sale or retention of properties belonging to the trust estate and the investment of sums of money constituting a part thereof, or the exercise of any of its other powers or discretions as such Board of Trustees has hereunder, and in following in whole or in part any requests, recommendations or approvals of such Trustor, the Board of Trustees shall be free from responsibility for any losses or liabilities which may result to the trust estate, the Board of Trustees, and/or any beneficiary hereunder by reason thereof. Such request, recommendation or approval shall be deemed to be duly authorized by the Trustor if contained in written instrument executed on behalf of the Trustor.‘After the death of the Trustor and the individual beneficiaries herein named, the Board of Trustees is hereby authorized to incorporate the Foundation if in its sole discretion it seems best and advantageous so to do, and in such event LaVerne College shall convey all of its title in the Trust Estate to such corporation upon request of the Board.‘In the event that any provision or provisions of this instrument are or are adjudged to be for any reason unenforceable the remainder hereof, disregarding such provisions, shall subsist and be carried into effect.‘This trust may not be revoked nor, except as otherwise herein provided may any of the corpus of the trust estate be withdrawn.‘Executed in Triplicate.‘In Witness Whereof the Trustor has hereunto set his hands and seal, and LaVerne College as Trustee has caused these presents to be subscribed by its President and Secretary thereunto duly authorized this 23rd day of May, 1939.‘Levi M. Davenport‘Trustor‘La Verne College‘By Edgar Rothrock‘President‘By J. C. BrandtSecretary‘(Corporate Seal)‘The undersigned Trustor does hereby certify that said Declaration of Trust fully and correctly sets out the terms and trusts under which the Trust Estate is to be held, managed and disposed of by the Board of Trustees therein named, and does hereby consent to approve, ratify and confirm the same in all particulars.‘Levi M. Davenport‘Trustor‘I, Barbara N. Davenport, wife of the Trustor, Levi M. Davenport, do hereby certify that I have read the above Declaration of Trust and I hereby agree, consent to, approve and ratify the same in all particulars.‘Barbara N. Davenport‘The undersigned designated as the Board of Trustees to manage, control and operate the Foundation and the Trust Estate, do hereby each agree to act as a member of said Board and to be bound by the terms and provisions of said Declaration of Trust.‘C. Ernest Davis, Lucile Davenport Weller, Fred A. Flora, J. E. Steinour, L. E. Miller’

2.  The directive read as follows:‘11–23–46. I am directing the Davenport Foundation Inc. to set apart sums sufficient to hold $1000.00 in the interest of the following:Will DavenportSon of NoahMartha PrueDaughter of NoahDora JonesDaughter of NoahGrace LeathermanDaughter of SarahBertha Le FeverDaughter of SarahAlva DuthieDaughter of SarahFlossie MoultonDaughter of SarahClyde FullerSon of KatherineClara TruaxDaughter of KatherineVesta HowellDaughter of JohnKatherine FullerJohn Davenport‘This $1000.00 for each shall be set apart from funds derived from a personal bank account now in the Security First National Bank at 230 Ea. Colorado St. Pasadena Calif. except that if any of these above named persons are in special need, he or she shall appeal for a portion of the $1000. to their interest, and the Foundation may allot to such person for their need from this personal fund.‘L. M. Davenport’

3.  It is to be noted that all the defendants with the exception of defendant Steinour disclaimed all right, title and interest in and to the bank account or any of the proceeds thereof, and defendant Steinour disclaimed all personal right, title or interest in and to such account.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.