It would seem to be admitted that the equity jurisdiction with which our District Courts are invested under the Constitution is the same as that administered in the High Courts of Chancery in England, which have repeatedly exercised such jurisdiction as is claimed in the present case for our own District Courts.
Hill on Trustees, (p. 463,) says that as a general rule, trustees of charities should never alienate the trust estate without the sanction of the Court. It does not necessarily follow that such alienation will be treated per se as a breach of the trust; for, in some instances, the court has sanctioned, and has even gone so far as to direct a sale by the trustees, wheresuch a course has appeared to be for the benefit of the charity. And what the Court will sanction upon its own consideration of what would have been beneficial to the charity, may also be done by the trustees upon their own authority in the exercise of their legal power. In ordinary cases the most important part of the duty of trustees is to preserve the trust property, and it lies with those who seek to support a sale by them to show that the transaction in question was beneficial for the charity. In the absence of such proof, and a fortiori, if there be any evidence showing the sale was improvident or prejudicial to the charity, it will certainly be considered a breach of trust and set aside. (Atty. Gen. v. the Mayor of Newark, 1st Hare, p. 395; Atty. Gen. v. Butler, Jac. p. 514; Atty. Gen. v. Brettingham, 3d Beavan, *p. 95; In re Park v. Charity, 35 Eng. Ch. R. 330; Atty. Gen. v. Warren, 2 Swanston, *303; Atty. Gen. v. Smith, 2 Vernon, 746; Atty. Gen. v. Cross, 3 Merivale, 541; Atty. Gen. v. Hungerford, 2 Clark and Findley, 357; Atty. Gen. v. Kerr, 2 Beavan, 429; Atty. Gen. v. Brooke, 48 Vesey, 320; Clephane et al. v. The Lord Provost etc. of Edinburgh, Law Reports, Appellate Series for 1869, Part II. p. 417.)
Appellant in reply cited. Tennent v. Taylor, 9 Cranch, 42; Thomas v. Ellmaker, 1 Parson's Eq. Cases, 98; Flaherty's Case, 2 Id. 186.
JUDGES: Wallace, J., delivered the opinion of the Court, Crockett, J., and Rhodes, C. J., concurring. Sprague, J., expressed no opinion. Mr. Justice Temple, being disqualified, did not sit in this case.
OPINION
WALLACE, Judge
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 selected, 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 of the sale according to the 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, Wallace, J., rendered the following opinion; Crockett, J., and Rhodes, 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 cost 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."