Nolte v. Meyer

HENRY, Associate Justice. This suit was brought by appellants, who claimed to be beneficiaries thereunder, in behalf of themselves and other alleged beneficiaries, to have trustees appointed and an interpretation of an instrument reading as follows: [355] “ The State of Texas, Washington County.—Know all men by these presents, that whereas the German citizens comprising the neighborhood six miles west of Brenham, in the east edge of the Labadé Prairie, Washington County, wishing to establish a permanent school, to be known as the Harrisburg Academy, that I, W. T. Bush, of the aforesaid State and county, for and in consideration of the interest I take in the promotion of education, and the further consideration of the sum of thirty ($30) dollars in specie, the payment of which is secured by a promissory note for that amount, $30, bearing interest at 10 per cent per annum from the 21st day of February, 1868, and made payable on the 1st day of January, 1869, and signed by Wm. Lehde in behalf of the trustees yet to be appointed of the aforesaid Harrisburg Academy, do this day grant, bargain, sell, and convey a certain tract or parcel of land to the aforesaid German citizens and trustees, said trustees yet to be appointed by said citizens. Said parcel of land is in the aforesaid State and county in the Elliott Allcorn league, and is a part of the survey of 361 acres known as the James B. Wills tract; said tract was deeded by said Wills to E. H. Horton by deed bearing date September 29th, 1860, and by the said Horton to me, the said W. T. Bush, bearing date February 11, 1867. Said lot of land conveyed for school purposes (as shown above) is described and bounded as follows, to-wit: Beginning at the west corner of a survey of 56 acres of land made for John Linn out of the above described tract of 361 acres, a stake; thence north 43 degrees east with said Linn’s line 75 varas to a stake near a branch or dry gully in prairie, from which a willow 10 inches diameter .marked X bears north 25 east 30 varas distant; thence north 47 degrees west 225 varas to a stake in prairie for corner; thence south 43 degrees west 75 varas to a stake for corner in the southwest boundary line of the aforesaid James B. Wills survey; thence with said line south 47 degrees east 225 varas' to the place of beginning; containing three (3) acres of land. “How I, the aforesaid W. T. Bush, of the aforesaid State and county, do forever bind myself and legal successors to warrant and defend the title to the foregoing three acres of land, together with all the appurtenances thereunto belonging or in anywise appertaining, unto the aforesaid German citizens and trustees, of the aforesaid State and county, and their legal successors, against the claims of any and all persons whatsoever. “In testimony of which I have hereunto signed my name and affixed my seal, using scroll for seal, February 21, 1868. “W. T. Bush.” [Seal.] The defendants answered, asserting their right to act as trustees by virtue- of their selection by the German citizens of the neighborhood, and asked judgment for money expended in building a school house on the land. The court refused to both parties the relief by them respectively sought, and gave judgment for costs in favor of the defendants. [356] Delivered January 27, 1891. We are of the opinion that the designation of the trust is ill e'very particular too indefinite and uncertain to be sustained or administered by a court. Dashiell v. Attorney-General, 9 Am. Dec., 572, and note; Bailey v. Kilburn, 43 Am. Dec., 432; Galleyo's Executors v. Attorney-General, 24 Am. Dec., 650; 2 Perry on Trusts, sec. 731, p. 363. If we were able to determine who were intended to be included within the designation of German citizens, it would still be impossible to ascertain the boundaries of “the neighborhood six miles west of Brenham in the east edge of the Labade Prairie, Washington County.” There is no practical way of ascertaining just where one neighborhood begins or another one ends. It would have been different in that particular if some political division had been mentioned which for some purpose of government had defined boundaries. The instrument neither states the number of trustees nor gives any direction bjr which the number intended may be ascertained. It neither appoints trustees nor provides a' method by which they maybe appointed. The direction that they maybe appointed by said “German citizens” does not help, as the same difficulty exists about who- are the “German citizens” intended who may make the appointment as there does as to who are the beneficiaries. There being no grantee named in the deed the legal title remains in the grantor. In order to furnish the relief sought by the plaintiffs the court, instead of interpreting and administering a trust according to the purpose of the grantor, would have to in effect create one. . Because we think the instrument declared upon is void for uncertainty, we affirm the judgment. Affirmed.