Alemany v. Wensinger

delivered the opinion of the Court, Cbock-ett, J., and Rhodes, C. J., concurring:

The principal purpose intended by the donors was to provide “a Roman Catholic Church for the German Congregation of the City of San Francisco.” As a means to this end the lot on Sutter street, near Montgomery, was *293selected, and at the time of the selection it was suitable or at least not inappropriate for that purpose. Subsequent events, not then anticipated, and therefore not expressly provided for by the donors, have already practically defeated the scheme of the original donation. Hotels and business houses and places of public resort have grown up in close proximity to the property. A variety of circumstances, the results of the unforeseen growth of a populous city beyond and around the premises have, as found by the Court below, rendered this lot “unsuitable as a site for an edifice for religious worship.” These circumstances have, at the same time, greatly enhanced its value in the market, and it appears that a sum can be obtained for it which will be sufficient, after paying'off the indebtedness of the church, to purchase a suitable lot in the city and erect thereon an edifice proper for the accomplishment of the original design of the donation. The Court below directed, under these circumstances, a sale of the premises and a reinvestment of the proceeds of the sale in furtherance of the objects of the trust. "We see no error in the general scope of the decree. It cannot be said to have displaced or interfered with the original trust for that, so far as the particular premises are concerned, had already been practically defeated by the circumstances before adverted to. The decree in its effect re-establishes the trust as far as possible, and provides the only means by which the intent of the donors may be executed and carried into substantial effect. Under the circumstances, however, and in view of the fact that a large sum of money will come into the possession of the respondent, which it will become his duty to expend pursuant to the directions of the decree, we think that the Court below should have directed that he give a sufficient bond to secure the fund against possible loss.

It is therefore ordered that the cause be remanded to the Court below, with instructions to modify the decree by requiring of the respondent, a bond with two sufficient sureties, to be approved by the Court below, in the sum of $140,-000, conditioned for the faithful application of the proceeds *294of tbe sale according to tlie directions of the decree, and reserving the authority of the Court upon application of any party interested to exact a further bond, if the insolvency of the sureties or other circumstances should require it and its authority, if circumstances should make it necessary, to order the fund itself into the hands of another trustee of its own selection, to be applied and expended under the direction of the Court. '

Upon petition by appellants for a modification of the judgment of this Court, rendered the following opinion; Crockett, J., and Nhodes, C. J., concurring:

It is ordered that there be added to the directions to the Court below the following words: “ It is further ordered that the costs of the litigation in the cause be paid out of the trust fund, and that the Court below allow to the appellants a reasonable counsel fee to be paid out of said trust fund.”