In re the Estate of Fair

—This is an appeal from a decree of partial distribution.

Upon the former decision of this case, Mr. Justice McFarland rendered the following opinion, which is now adopted as the opinion of the court upon the questions therein discussed: —

“It seems to be necessary, at the expense of brevity, to state the fifteenth clause of the will here in full. By the preceding clauses a large number of legacies in money are given to various persons, consisting mainly of brothers and sisters of the decedent, and certain of their children. The said fifteenth clause — and we put in italics the ivords which are most important in arriving at a conclusion—is as follows: —

“1 Fifteenth. All the rest, residue, and remainder of my estate, property, and effects, real, personal, and mixed, whatsoever, and wheresoever situated, I give, devise, and bequeath unto my trustees hereinafter named, and to the survivors of them, and to their successors in office, in trust, for the following uses and purposes; that is to say:—

‘“To have and to hold the same, in trust, during the lives of my daughters, Theresa A. Oelrichs and Virginia Fair, and of my son, Charles L. Fair, and during the life of the survivor of them, and upon the death of such survivor to transfer and convey to the children or descendants of my said daughter

‘“In trust, further, during the life or lives of my said daughters and son, and the survivor of them, to hold, manage, and control the said trust property and estate, and monthly to pay over the net income derived therefrom to my said daughters and son in equal proportions, and upon the death of either of my said daughters, to pay over the one third of said net income to which she, if living, would be entitled, to her children or descendants, if any there be, otherwise to my surviving daughter, and upon the death, during the life of my said son, of said surviving daughter, leaving children or descendants, then to her said children or descendants, and if she leaves no children or descendants, then said portion of said net income to become a part of the rest and residue of my estate, and to be disposed of as such under the provisions of this will, and upon the death of my said son, to pay over the one third of said net income to which he, if living, would be entitled, to my said two daughters, in equal proportions, or to the survivor of them.’

“One or two of the other clauses of the will should be briefly noticed. By the seventeenth clause the appellants Angus and others are declared to be the trustees mentioned in the fifteenth clause; and they are authorized to sell any of the trust property, to invest and reinvest the proceeds of sales, to

“ In determining whether or not the trusts declared in the fifteenth clause are valid, the primary and most important consideration is, that an express trust to convey real property to beneficiaries is not lawful under the statutes of this state, but is by such statutes forbidden. The main contentions of appellants are based upon the invalidity of such a trust, although in some of their arguments they do contend that such a trust is valid. Clearly, however, such a trust is made by our code invalid. Our law upon the subject shows an intent to avoid the intricacies, frauds, and concealments which were possible under the old system of trusts and uses, whereby the title to real property was allowed to be in one person and the beneficial use in another, to such an extent that the confusion following was intolerable; and the purpose of the code provisions is clearly to confine trusts within very narrow limits, and to allow them only in a few instances where they might be specially used to subserve proper and necessary purposes. Section 847 of title IV of the Civil Code provides as follows: ‘Uses and trusts in relation to real property are those only which are specified in this title’; and section 857, in the same title, is as follows: ‘Express trusts may be created for any of the following purposes.’ Then follow four subdivisions, providing the purposes for which express

“Appellants indulge in frequent invocations of the rule that the intention of the testator must prevail; and they seek here to apply the rule to the point that this will should be construed as if it directly devised estates in remainder to the classes named, so that the persons of those classes living at the death of the testator would take vested remainders, subject to open and let in after-born children of the classes. But the rule includes the propositions that the intention must be found in the will itself; that where the language of the instrument is unambiguous and perfectly clear, there is no field for the play of construction; that where the testator has clearly expressed one intention, the court cannot impute to him another; that the intention which clearly appears must be lawful; and that a court can, in no instance, make for the testator a new will. Now, in the case at bar it is perfectly clear, beyond even a reasonable doubt, that the testator did not intend to devise estates in remainder to persons of the named classes, but intended to devise the whole fee to his trustees, upon trusts to convey, after the expiration of a probably very long period of time, to those persons, so that the latter would receive new estates created by the conveyances. There is no room here for any construction based upon an apparent or presumed unskillfulness, ignorance, or negligence of the testator; the will is in apt legal phraseology; and his intentions are clearly and accurately expressed. Not only are the words ‘to transfer and convey’ used without any other language indicating in any way an intent to devise estates to persons of the classes named, but those words are used over and over again,—thus showing, ex industria, what his fixed purpose was. In order to carry out his scheme he had to provide that his trustees, under certain circumstances, should convey portions of the estate to persons of certain named classes, and that upon the happening of certain events the same portions should be conveyed to other persons of other named classes, so that, to meet these various contingencies, the directions to his trustees had to be frequently repeated; but in no instance did he fail to use the words ‘transfer and convey.’ Not even by a slip of the pen was he betrayed into using any language that might be construed into a direct devise,—as, for instance, that the property should ‘go to,’ or

“The principle that the intention which a testator has clearly expressed in his will must be followed, and that-— applying the principle to the case at bar-—the will cannot be construed as intending a direct devise where the clearly expressed intention is otherwise, and that there cannot be a devise without operative words sufficient to create it, is aptly illustrated in Estate of Young, 123 Cal. 337 . That case goes even further in applying this principle than it is necessary to go in the case at bar, for there the will showed on its face that the testatrix was unlearned and. unskillful as a conveyancer, while here the express design was clearly stated in legal language and persistently adhered to. In the Young case the words in the will to be construed were, ‘To C. A. Young, my husband, my bank book shall be handet to him with gold watch and chain, also two deeds. After my husband deatt the two deeds shall go to Katarina Muhr’; and it was contended that the will should be construed as devising an estate in the land described in the deeds to the husband for life, and remainder in fee to Katarina Muhr; but the court held that the express intent was, merely, that the deeds should be delivered, which amounted to nothing, and that there were no operative words in the will which constituted a devise of the land. Mr. Justice Henshaw, in delivering the opinion of the court, said, among other things, as follows: ‘There was no delivery of these deeds during the testatrix’s lifetime. What validity they possessed then came from the will, and therefore, if, by the act of the testatrix, title to these lands passed, we must find in the will both an intent to devise them and operative words to effect the intent’; and again, ‘There must, in the will itself, be found a clear intent to devise them, and operative words sufficient to create a devise’; and then the language of Buller, J., in the case of Dacre v. Dacre, 1 Bos. & P. 251, is quoted with approval, as follows: ‘I agree that the testator may express his intentions by what words he pleases, and the court is so to

“ It is contended by appellants, that even though the trust to convey be void under our statute, yet it should be considered merely as a use, executed by the English statute of uses (27 Hen. VIII, chap. 10.) There is in the briefs a great deal of

“In Greer v. Blanchar, supra, the court say: ‘The property in controversy is alleged to have been conveyed in the year 1853 to a trustee, “in trust, for the use and benefit of Harriet M. Risley and S. Risley.” By means of that conveyance the equitable estate in the premises was vested in the Risleys as joint-tenants ’; and this is merely a declaration of the principle which runs through all our decisions: that in such a case the equitable estate, only, vests in the beneficiary; while under the English statute of uses, in such a case, the legal title would have so vested. Again, the statute of uses executed only those trusts which were passive,—that is, where there was nothing for the trustee to do, as where there was a conveyance to him, in terms, for the use of another, or where he stood seised to the use of another, or where he was to permit or suffer something,—but it did not execute a special or active trust where there was some duty to be performed by the trustee; and a trust to convey was an active trust, and therefore not executed. In 1 Perry on Trusts, sec. 309, the principle is correctly stated as follows: ‘Therefore, if any agency, duty, or power be imposed on the trustee, as by a limitation to a trustee and his heirs to pay the rents, or to convey the estate, ... in all these cases, and in other like cases, the operation of the statute is

“The contention, that although the trust to convey be void, it may be held good as a ‘ power in trust to convey,’ cannot be maintained. The Hew York statutes, which are very similar to ours, in enumerating those trusts as to real property which alone are valid, expressly provide for a power in trust to convey; but there is no such provision in our statutes, although we had such a one for a short time. It was section 860, in the same title IV of the Civil Code, which declares what trusts are and what are not valid, and was as follows: 1 Where an express provision as to real property is created for any purpose not enumerated in the preceding section, such trust vests no estate in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, is valid as a power in trust, subject to the provisions in relation to such powers contained in title V of this part.’ It was followed by two other sections on the subject, but they were all three repealed in 1874, and in the same year the entire title V, which was on the subject of ‘powers,’ and which contained over sixty sections on that subject, and to which said section 860 above quoted refers, was also wholly repealed. With respect to the meaning and operation of title IV, which declares what trusts in relation to real property may and what may not be created, there is no distinction between a trust to convey and a power in trust to convey. A mere naked power can be exercised or not, at the will of the holder; but if the exercise of it be imperative, it is a trust. In Sugden on Powers, the author, having said that it is the very nature of a power to be ‘left to the free vyill and election of the party to execute it or not, for which reason equity will not say he shall execute it,’proceeds as follows: ‘But in laying down this broad rule

“A good deal has been said by counsel about the difference—or, as appellants contend, the want of much difference—between the consequences flowing from a direct devise, and those flowing from a trust to convey at a distant period to persons of certain classes who might then be in existence. The quantity of that difference is not material to the determination of the question here involved. The question to be determined is, What did the testator do? Did he devise vested estates in remainder? or did he devise the whole fee to

“There are other considerations presented by counsel of both sides, bearing upon the question of the validity or invalidity of the trust clause of the will here under discussion, but they are of less consequence than those heretofore noticed, and are mostly covered by the views already expressed; and owing

The foregoing opinion disposes of what may be termed the technical legal phases of the case, and we pass to the consideration of questions which largely have presented themselves upon the last arguments, and which were called forth by reason of the views of the various justices of this court promulgated in the former decision.

The will provides: “All the rest, residue, and remainder of my estate, property, and effects, real, personal, and mixed, whatsoever, and wheresoever situated, I give, devise, and bequeath unto my trustees hereinafter named, and to the survivors of them, and to their successors in office, in trust, for the following uses and purposes; that is to say, to have and to hold the same, in trust, during the lives of my daughters, Theresa A. Oelrichs and Virginia Fair, and of my son, Charles L. Fair, and during the life of the survivor of them, and upon the death of said survivor to transfer and convey to the children or descendants of my said daughter Theresa A. Oelrichs, the one fourth of said trust property and estate,” etc. We are now directly confronted with a question of construction; namely, Does this provision of the will place in the trustees a trust to transfer and convey this estate to certain of Fair’s kindred? or, upon the contrary, may it be construed as a direct devise to those kindred? Simplifying the proposition, yet leaving it exactly the same in principle, aside from the question of perpetuities, let us assume the provision to be, “ All the rest and residue of my estate and property I give, devise, and bequeath unto my trustees, in trust, for the following uses and purposes; that is to say, to have and to hold, in trust, for six months, applying the rents and profits thereof to the care of my children, and upon the expiration of the six months to transfer and convey said property and estate to my kindred” (naming them). Does such a provision create a trust in the trustees to transfer and convey the estate? Thus presented, this question does not seem to be a big one. Yet a wonderful amount of argument, of learning, and of law by most eminent counsel has been advanced to aid the court in

In the Walkerly case, supra, it is said: “Where the language of the provisions of the will is plain and unambiguous, the courts are not permitted to wrest it from its natural import in order to save it from condemnation. ... It may be said of all wills, that the testator’s intent is to make a valid disposition of his property. . . . But a court is not therefore authorized to modify or vary the plain language of the testator, and thus create a new and valid will for him, even if it were certain that the testator would have adopted the interpretation of the court, had he known his own attempt was invalid.” Mow, this property, under the illustration, was devised to the trustees, in trust, for certain uses and purposes. What are these uses and purposes? They are: 1. To hold the property for six months, and apply the income to the care of the children; 2. At the period of time fixed, to transfer and convey the property to certain kindred. It is conceded that the trustees took the property in trust for certain uses and purposes; yet the trust to transfer and convey appears as plain and palpable, from the language used, as the trust to hold the property for six months, and apply the income to the care of the children. If there he a trust created to do one of these things, there is a trust created to do the other. The testator’s intentions must be determined from the words he used. He said he desired the trustees to hold the property in trust for a fixed period, and then transfer and convey it. He certainly intended by these words that they should make a deed of conveyance of the property. And if he intended that they should make a deed of the property, he only could have intended that they should by that deed pass the fee of the property. The words used, indicating a conveyance, are words of simple, ordinary legal import, and are the words always used in an instrument where a party desires property to pass by deed. A layman would not hesitate a moment in the declaration that Fair intended by this language that the trustees should pass title to the property by deed. It is only the astute lawyer who can see any other intention. While Fair’s intention as to the creation of a trust

Stress is laid by appellants upon the effect of the words, “ to have and to hold, in trust, during the lives of,” as fixing the estate of the trustees; yet it is plain, the simple purpose and effect of that clause is only to fix the time when the trustees shall make the conveyance,—shall transfer and convey the estate. These words were not used to fix the quantum of the estate of the trustees, but to fix the day when the fee should be conveyed to the beneficiaries. If the estate were devised to the trustees, in trust, to have and to hold for six months, and then to transfer and convey to the beneficiaries, would the estate in the trustees be an estate simply for years? We hold not; but, on the ctmtrary, are assured the words, “ to have and to hold, in trust, for six months,” would be used for the purpose, and should have the effect alone of marking the time when the property should be transferred and conveyed; and would in no degree establish the quantum of estate devised by the instrument to the trustees in trust. These words not having any effect upon the quantum of the estate, there are no other words in the instrument having any tendency to diminish that quantum. It seems, under these circumstances, that if a complete and perfect fee ever could vest in a person, it has vested in these trustees. It follows from these views that the contention of appellants, to the effect that the trustees took only an- estate for the lives of Fair’s children, or an estate for life-with an incidental fee which allowed them to sell and transfer the property during that period, cannot be maintained.

Another view of this contention, closely allied to the one just considered, is found in the claim that the will creates an estate for life in the trustees, with a direct devise to Fair’s kindred. And this claim is based upon the concession (for the purposes of the case, only) that Fair intended to create a trust to convey, but the means or mode provided by him for vesting the estate being illegal, therefore, in order to carry out his general intent to vest the property in certain of his kindred, a legal means and mode will be substituted by the court. In other words,

Let it be conceded that a general intent may be found in this will, indicating that these beneficiaries should have the property, still the only mode provided by the testator for them to get it is illegal, prohibited by the law, and this court has no power to provide a legal mode. In attempting to vest an estate, if the only mode prescribed for the purpose by the tes

Some importance is attached by appellants to section 864 of the Civil Code. That section provides: “Notwithstanding anything contained in the last section, the author of a trust may, in its creation, prescribe to whom the real property to which the trust relates shall belong in the event of the failure or termination of the trust, and may transfer or devise such property subject to the execution of the trust.” The facts of this case do not call for an analysis in detail of this section of the code. In the creation of the trust here involved, the trustor has made no attempt to prescribe to whom the property shall

If you eliminate the words “transfer and convey” from the will, then the beneficiaries named would not take the estate at all, for the heirs of Fair would be entitled to inherit it. Hence the interest of the beneficiaries in the estate can only come to them through the words “transfer and convey”; and if the beneficiaries are to take the fee, and take it only through the medium of those words, the trustees must have the fee vested in them, in order that they may transfer and convey it. The will demands that they shall transfer and convey to the beneficiaries,—that is, make a conveyance of the property to them, —that is, vest the title of the property in them by a conveyance. To hold otherwise—to give the words “ transfer and convey” some other meaning—is to wrest them from their usual and ordinary import, and give them a forced meaning wholly unjustified by anything contained in the instrument. The favor of the law in the direction of supporting testacy cannot go to these lengths. If the document under consideration had been a deed, and not a will, would this court hold that these named kindred would take the estate by direct grant, the trust being void ? We apprehend not. Yet the intent in both cases being the same, the rules of law as to the construction of deeds and wills stand the same. We cannot imagine that an estate created by will would be valid, while the same estate created by deed would be invalid. The rights of devisees are no more sacred, and are entitled to no more protection, than are the rights of heirs.

The court concludes that the fee to Fair’s property was cast in the trustees, in trust, to transfer and convey to certain oi his kindred; that his intention to so place the fee stands out plainly from the face of the entire will; that no contrary intention whatever appears therefrom; and that the will must fall by reason of this prohibited trust. We are more satisfied with this result, when it is considered that a contrary conclusion would perpetuate a trust of this vast estate, probably for a period of fifty years or more, and also result in a disinheritance of Fair’s children. Notwithstanding a man has a right, under the law, to make a will, still the law is not kindly disposed to either of these things, and if this were a closely balanced case, these threatened results would furnish reasons for a decision the other way.

For the foregoing reasons the decree is affirmed.

Van Dyke, J., and McFarland, J., concurred.

—Upon the former hearing of this case I gave my assent to the conclusion reached by Mr. Justice Harrison, that an equitable remainder in the estate of Fair was devised to the persons to whom the trustees were directed to convey upon the death of his last surviving child. That the will created a trust to convey, I never entertained any doubt. Not only is the language apt and well chosen for that purpose, not only have its phrases been selected and employed with sedulous care, not only was it the opinion of the astute attorneys who prepared the pleadings of appellants that a fee was devised by the will to the trustees, but, in addition to all this, the question propounded upon the last argument of the case has remained without satisfactory answer, and is to my mind unanswerable: “If this language does not create a trust to convey, what different words would you or could you employ to create such a trust?” In the light of the arguments, oral and printed, upon the last hearing, and after a more detailed and exhaustive consideration of the authorities, I am convinced that in a natural desire to uphold the last will of the deceased, due weight was not given to the clear and explicit intent of the testator. While always of the opinion that a trust to convey was clearly meant and created in the will, and that such a trust, under the laws of this state, is absolutely void, it then seemed to me that the provisions of the will could be sustained in accordance with the doctrine of the cases holding that under such a trust an equitable interest or estate or remainder passes to the beneficiaries. The error of this position came from a failure to give due recognition to the fact emphasized and demonstrated upon the last argument, that only in those courts where a trust to convey is valid, as in England, or in those like New York, where its purpose is effectuated by an enabling statute, as a power in trust, has this rule or doctrine ever been declared. It is because the trust is valid, and that consequently a legal estate vests in the trustees, that an equitable interest or estate, eo instanti, following the legal, vests in or passes to the beneficiaries. But where, as in this state, the trust is void, and where, consequently, no legal estate can ever vest in the trustees, there can be no estate in law to support the equity. The whole trust is void. The legislature has prohibited a trust to convey. It has declared such a trust to be void. It has forbidden the separation of the equitable from the legal interest by this mode,

“ Where an express trust in relation to real property is created for any purpose not enumerated in the preceding sections, such trust vests no estate in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, is valid as a power in trust, subject to the provisions in relation to such powers contained in title Y of this part.” (Civ. Code, sec. 860.)

“Nothing in this title prevents the creation of a power in trust for any of the purposes for which an express trust may be created.” (Civ. Code, sec. 861.)

“ In every case where a trust is valid as a power in trust,- the real property to which the trust relates remains in, or passes by succession to, the persons otherwise entitled, subject to the execution of the trust as a power in trust.” (Civ. Code, sec. 862.)

They were properly placed under the chapter on uses and trusts, which begins with the declaration that “ uses and trusts in relation to real property are those only which are specified in this chapter.” For powers in trust are trusts. As Sugden says, “Powers, as we have seen, are mere declarations of trust” (Sugden on Powers, 119); and Lord Hardwicke declared that “ such powers [where any person other, than the holder has an interest in its execution] ought rather to be called trusts than powers.” (1 Perry on Trusts, see. 248.) These sections were repealed'with other sections, and, recommending their repeal, our learned codifiers reported to the legislature as follows: “We have proposed to strike out the whole chapter on powers, as wholly unsuited both to the wants and habits of the people, retaining one or two sections by amendment of other portions of the code in places where the provisions of those sections properly belong.”

What, then, was the effect of these repeals? Can it be said that they meant the revivification of the abstruse common-law system? Can it be fairly argued that that incomprehensible scheme was better suited to the wants and habits of our people than the simpler one taken from New York, and by us afterward abolished? And if this was in the mind of the revisers

But if it be conceded that common-law powers in trust do exist in this state, still another difficulty confronts us. In England there would not be, and never has been, any occasion to resort to a power in trust to save a will like this, for the trust to convey would be valid and operative as a legal, active trust. The English courts uniformly and unhesitatingly have upheld such wills as creating valid trusts. What those courts might do if their law declared such trusts illegal,—whether they would convert the trust into a power in trust, and thus uphold it,—is a question that, as it has never been asked of them, it would be mere speculation to declare what their answer might be. As the necessity never arose at common law for declaring that such language created a power in trust, there is no common-law decision to act as guide. And this was appreciated in New York, where such trusts, as here, are admittedly void, and are saved only by force of their enabling statute,— a statute which we have not, and which effectuates the void trust under an express grant of power.

That the void trust may still be treated as valid to the extent that the testator must be held to have prescribed the persons or class to whom the property shall go upon the failure or termination of the trust (Civ. Code, sec. 864), is to my mind also an untenable proposition. There is never, or seldom, any difficulty in determining to whom or in whom the testator or settlor means that his trust property shall descend or vest upon the termination of the trust; but it does not follow from this, that, because in indicating this intent he has prescribed an unlawful means for its accomplishment, the result will be assured without regard to the mode. In the case of trusts that violate the rule of restraints on alienation, there is

For reasons amplified in the preceding opinions, it seems apparent that the failure of the trust to convey defeats the testator’s trust scheme. It leaves the whole beneficial interest and the whole reversion in his children living at the time of his death,—a result essentially and radically at variance with that which he sought to accomplish. The consequence, then, in these particulars, is the same as though he had died intestate. The property will descend to his heirs at law, as provided by the rules of succession in this state, so that those who are the immediate and direct offspring of his blood will succeed by inheritance.

For these reasons I concur in the judgment.

dissenting.—I dissent. Convinced that powers have not been prohibited in this state, but that the right to create them is unlimited, I am not able to read the will as my associates do.

In the first place, I see no'force in the proposition that we

There is no reason why this universal requirement to presume that parties contract in view of the law should be relaxed as to wills, unless we seek for a pretext to avoid them. If there is any difference, the reason for applying the rule to the construction of wills is more cogent. They are generally more deliberately prepared, and are to be executed by others than the persons who made them, and usually there are those who would gladly defeat their execution. The testator can rely only upon positive law for its execution.

I think, then, since a trust to convey cannot be created in this state, and a power in trust for that purpose is perfectly valid, that the obvious intent of the testator, as shown by the clear language of the will, was to convey to his trustees a life estate only, and that the direction to his trustees, “ upon the death of such survivor to transfer and convey,” was intended as a power in trust. The language is certainly as appropriate and apt for the creation of a power as for a direction to execute a trust. If the eminent counsel for respondents could believe that powers can be created under our laws, I cannot doubt that they would have so construed it. This proposition once admitted, in my opinion the language of the will cannot be understood in any other way.

The will having been probated, all presumptions are in favor of testacy, and against intestacy. The presumptions in favor of the heirs then cease. The duty of the courts, then, is, to so construe the will, if in reason it can be, so as to prevent intestacy, total or partial. Keeping in view, therefore, these propositions,—-to wit, that the testator knew that a trust to convey cannot be created in this state, and that a power in trust can be, and also that an estate in trust cannot be created for a period unmeasured by lives in being,—let us read the will. It is, in

Here it is expressly declared that the purpose of the trust is, that his trustees shall hold the estate during the mentioned lives, and during such lives, and only for that period, the trustees are expressly authorized to manage and control, to collect rents, etc. There are no further duties as trustees, and no further authority, save to transfer and convey at the termination of the trust. This authority has all the attributes of a power, although it might also have been appropriate as a direction to trustees, had not such trusts been prohibited. Being equally appropriate for both, if one course is unlawful and the other lawful, we must presume the testator meant to do only that which he could lawfully do. Nor do I see how the express declaration that the trustees shall hold during the lives of his children can be regarded otherwise than as also containing the condition that they shall not hold beyond that time, and this is rendered more plausible by the fact that such limitation was required to make the trust legal. The power was to be executed, eo instanti, upon the death of the survivor. If not then executed, the persons and the interests to be conveyed were ascertained. At that instant, if not before, the entire estate became alienable.

I understand respondent to contend that the direction to hold during the lives of the children of the testator is a mode of indicating when the conveyances are to be made. But it seems to me that the only purpose of the trust was to deprive his children of all power to control, manage, or dispose of his estate, while enjoying the profits thereof, and to deprive the children of his son of all interest in it. All this was accomplished by the life trust. The direction to convey was adopted as a mode of ending the trust; so the estate then passed to the beneficiaries in full property, and the purpose of the testator in that regard was accomplished.

To repeat, we cannot doubt that the testator desired to accomplish these ends: 1. To provide ample revenue for each of his children during his or her life. 2. To prevent the descend

Aside from some special legacies, these are all or the main purposes sought to be accomplished. TMs can all be done without violating any law and without giving an unnatural or strained construction to any language contained in the will. This will be admitted if the concession be made that it was competent for him to create a power.

Originally, in the second division of the Civil Code, part II, title IV, treated of uses and trusts, and title V of powers. Title IV commenced with section 847: “Uses and trusts in relation to real property are those only which are specified in this title.” Title V began: “Section 878. Powers in relation to real property are those only which are specified in tMs title.” It is not contended that title IV conferred upon any one the power to create uses and trusts. The sole purpose of the provisions originally found in that title was to limit and restrict the power of the owners of real property in that regard. This intent is manifest. And, similarly, title V was an express limitation upon the power of the owners of real property. The language, “ Powers . . . are those only which are specified,” is not a vesting of authority to do that wMch before could not be done: it is an express restriction. I understand tMs to be admitted, as indeed it must be.

The two titles were parts of one statute which recognized the right to create uses and trusts and powers, and limited such rights or authority to certain specified purposes. Two years afterwards, the legislature repealed title V. So far as affects this matter, the language of the repealing clause is only: “ Title V is repealed.” Two sections were retained, however, by being transferred to the title in regard to trusts. Section 900 was re-enacted as section 860, without the change of a word, and section 895 was re-enacted as section 858. Section 860 provides for the event of the death of one of several donees of a power. Section 858 provides for a power of sale in a mortgagee. TMs is the only instance in the code, as it now exists, where any power is expressly authorized. The reason for this authorization is not far to seek. Supposing the right to create powers to be in all other respects unlimited, the right to create such a power, but for this section, would be forbidden

Section 1229 refers to a case where power to modify or revoke an instrument affecting real property is reserved to the grantor, or -given to another. The section assumes the right to create such power, and states its effect in certain cases.

Section 1330 refers to a power to devise. It assumes the existence of the power, and states one case in which the power shall be deemed executed. Not a word in the section can be construed as authorizing such a power. These provisions existed when title V was in the code, and should have gone with it, if the repeal of that section was to be deemed the abolition of powers. If, on the other hand, the repeal merely did away with a restriction upon the right to create powers, they are still properly in the code, and have their proper use.

It seems to be argued that the title on powers was in reality an- exception to the prohibition of uses and trusts contained in title IV, and that powers are trusts. For many reasons this cannot be so. Section 846 forbids this construction. All trusts which could be created were specified in that title. Powers were not there specified, but were in the same statute regulated, and limited in another title. I suppose all will admit that title IV has reference only to real property held in trust for certain purposes. And it will not be contended that a power is real property, or that in an instrument creating the power any interest is conveyed to the donee of the power. The donee of a power has no estate or interest in land, legal or equitable. And in this, state there need be no equitable estate in any one, either in the creation or the execution of a power. An example of this is the case of an executor. He may be the donee of a power to sell land, and may execute it, but no equitable estate need be created in any one. (Morf few v. San Francisco etc. R. R. Co., 107 Cal. 587 .)

Certain expressions of law writers are cited, in which powers are declared to be trusts. Of course, powers, when given to be executed in the interest of another, are trusts. The power of an ordinary agent is a trust, and he holds it in trust for another. A public office has been said to be a public trust. A power in trust is a trust in the same precise sense, and in no other. Will any one contend that these are the sort of trusts dealt with in title IV?

But, it is contended, powers cannot exist in this state, for we have no statute of uses, and a power was but the right to appoint a use, which, under the statute, drew to it the legal title. I presume it was never contended before that powers did hot exist at common law, and most likely the learned counsel for respondent do not wish to be understood as contending for that proposition. If they did not exist at common law, when were they authorized? Certainly not by the statute of uses. That statute recognized that they were in common use as to equitable estates, and its purpose was to crush out both trusts and powers. If the right to create a power did not exist, one could not have been made to dispose of equitable estates. Why were they efficacious as to equitable estates, and of no avail as to legal estates? and how did the statute enable the land-owner to dispose of freehold estates through the medium of a power? Ho doubt, powers, as known to the profession, are those which • depended for their efficacy upon the statute of uses; and the reason why, in England, powers depended for their efficacy upon the statute of uses was because of the restrictions upon conveyancing which existed at common law. This is most con

I repeat, therefore, that powers were not created by the statute of uses; but, as they existed in England, they depended for their efficacy upon the statute, because, and only because, by means of that statute they were relieved from the restrictions

It is not a matter of interest to inquire whether everything could he done here under a power which could have been accomplished in England after the statute of uses. Doubtless, the use of powers is subject to the restrictions which exist in this state upon conveyancing, and in this case to all limitations upon testamentary disposition of property. The direction in this will is to convey to ascertained persons, upon the expiration of a lawful trust, definite and fixed interests in the estate which had been the subject of the trust. The estates to be conveyed were present estates in fee-simple. No reason occurs to me why such a power should be held invalid.

I do not deem it necessary to discuss at length the assumed implication from the authority given the executors in paragraph 17 to sell property. That cannot affect my argument that the testator intended to confer upon his executors a power in trust. If the estate in fee did pass to the executors to enable them to sell, surely the power ended upon the death of the surviving child, and then the estate of the trustees would necessarily end. There is nothing inconsistent in regarding them as trustees for the purposes of the lawful trust, and donees of a power to convey the property when the trust estate ends.

I have only to add that I still concur with Mr. Justice Harrison in the view that the will may also be maintained as a direct devise, if powers do not exist in this state.

dissenting.—I dissent from the order of affirmance, upon the grounds stated in the opinion given by me at the former hearing of the cause. I also concur in the foregoing opinion of Mr. Justice Temple.

dissenting. — A careful consideration of the arguments advanced upon the rehearing of this case has convinced me that the opinion which I formerly expressed requires modification, and especially that my conclusion that the intent of the testator might be given effect as a direct devise of the remainder cannot be sustained upon the concession that the only means chosen by him for effecting the transfer was unlawful. There are decisions which sustain, and others

A trust to convey is, of course, forbidden by statute, and if the will of Senator Fair attempts to create a trust to convey, it must, at least to that extent, fail. If his grandchildren and brothers and sisters can take only through the medium of such unlawful trust, they cannot take at all.

But to me it seems a misuse of térms to say that this is a trust to convey. It is a perfectly valid trust for other purposes, and for a lawful term. The conveyance which the trustees are directed to make at the termination of the trust is a mere incident. I still adhere to my original opinion, that although upon its more obvious construction the will was designed to create an invalid trust to convey, in- addition to the valid trust or trusts it is nevertheless susceptible of a construction more favorable to testacy, which, for that reason, it is our duty to adopt. I still think it can be construed as a devise to the trustees of a life estate only, with an added power to convey the remainder, and I am not shaken in this opinion by the argument so much insisted upon in the opinion of the court, that an estate in fee in the trustees was essential to enable them to carry out the evident purposes of the testator. If he could create a lawful power to convey, as distinct from a trust to convey, the trustees could, under such power, not only transfer and convey the remainder to the grandchildren and brothers and sisters, but they could also sell and convey, and reinvest the proceeds of, any of the property embraced in the trust, as by one clause of the will they were authorized and empowered to do. In Morffew v. San Francisco etc. R. R. Co., 107 Cal. 587 , it was held by this court that the donee of a testa

It only remains, therefore, to inquire whether, under the laws of California, it is competent for the creator of a trust, whether by will or deed, to empower his trustee, at the expiration of the trust term, and upon the completion of his trust duties, to transfer and convey the property to the person or persons to whom the grantor or testator desires it to go. Unless such power is denied or forbidden by positive law, there is no conceivable reason why it should be held unlawful. It contravenes no policy declared or implied in any of the statutory law of the state, and is sanctioned by the most elementary principles of the common law. It is one mode, and a perfectly natural, just, and unobjectionable mode, of doing what is expressly authorized by section 864 of the Civil Code, with reference to which I can only repeat what I said in my former opinion.

Upon these grounds I dissent from the judgment of affirmance.

The following is the opinion of Mr. Justice Harrison, rendered in Bank on the 26th of February, 1900, upon a prior hearing: —

HARRISON, J.-—-Senator Fair died, December 28,1894, leaving a last will and testament, which was admitted to probate in the superior court for the city and county of San Francisco, November 16, 1896, and letters testamentary thereon were on the same day issued toW. S. Goodfellow, James S. Angus, and Thomas G. Crothers, who were named in the will as its executors. The testator left surviving him, as his heirs at law, three children; viz., Charles L. Fair, Virginia Fair, and Theresa A. Oelrichs, wife of Herman Oelrichs. Prior to his death, there had been born to Mrs. Oelrichs one child, Herman Oelrichs, Jr., who is still living and an infant. Fair also left him surviving three brothers and two sisters, and certain descendants of a deceased brother. After the expiration of four months from the issu

The ground upon which the superior court held the trust created by the will to be invalid, and which is maintained by the respondents herein, is, that it' contravenes the provisions of section 857 of the Civil Code, in that it authorizes the trustees, upon the death of the last surviving child of the testator, to transfer and convey the trust property to the persons therein designated. The court further held that this trust was so inseparably connected with the otherwise valid trust to receive the income of the property and apply the same to the use of the children of the testator during their lifetime, that, in view of the legal consequences flowing from its inva

It is manifest from the terms of paragraph 15 of the will that it was the desire of the testator that his children should have no interest in his estate, other than the income thereof, during their lives, and that they should have no voice in the management or control of his estate; that no part of his estate, or of the income thereof, should ever belong to the issue of bis son Charles; and that upon the death of the last surviving child one half of his entire estate should belong to the descendants of his two daughters, or of the survivor of them, and the other half, in equal shares, to his brothers and sisters, and their descendants by right of representation. If there is no legal objection to the form in which this desire has been expressed, it has become the will of the decedent, which the beneficiaries .therein named are entitled to have enforced. The will of a testator is his expressed intention to dispose of his property in accordance with his desires, and if this intention is expressed in conformity with the requirements of law, it is the duty of courts to give it effect. The right of the owner of property to make a testamentary disposition thereof according to his own choice or preference is a wise provision of legislation, and its exercise within the

Certain well-settled rules of interpretation are, that the will shall receive such a construction as will make it effective, rather than void (Civ. Code, sec. 1643; Toland v. Toland, 123 Cal. 140 ); and that, of two modes of interpreting a will, that shall be preferred which will prevent intestacy. (Civ. Code, sec. 1326; Le Breton v. Cook, 107 Cal. 410 .) The primary rule of all interpretation is, that the will is to be construed according to the intention of the testator. (Civ. Code, sec. 1317.) For the purpose of ascertaining this intention, the language employed by him is to be interpreted by legal rules of construction, and the words used in the clause to be construed are to receive the first consideration; but his intention is the ultimate object to be sought in determining the construction to be given to these words, and is to be ascertained upon a consideration of the entire instrument. “ We must take into account the other provisions of the will, and the general purpose deducible from its terms, for the purpose of ascertaining the intention of the testator, as expressed by his language.” (Matter of Young, 145 N. Y. 538 .) If this intention is clear, it will control the meaning that would otherwise be given to particular words or phrases used by him. When the general intention is thus ascertained, it will control any particular intention which relates merely to the manner in which such general intention is to be carried into effect, and the terms employed by the testator are to be liberally construed, for the purpose of giving it effect, provided it is consistent with the rules of law. (Welsh v. Huse, 49 Cal. 509 .) “ It is a familiar rule in the construction of wills, that the intention of the testator is to govern, although it may be opposed to some of the words of the will, and that the general intention is to control any particular intention, especially when the particular intention relates to the manner by which the general intention is to be effectuated.” (Malcolm v. Malcolm, 3 Cush. 477 .) The rule was stated by the master of the rolls in Thellusson v. Woodford, 4 Ves. 329, as follows: “If the court can see a general intention consistent with the rules of law, but the testator has attempted to carry that into effect in a way that is not permitted, the court is to give effect to the general intention, though the particular mode shall fail.” In determining whether the language of the will will permit

The trust created by the will of Senator Fair is an executed rather than an executory trust; that is, all of the directions for its execution are expressed in the will, so that the trustees have nothing to do but to carry out its provisions in accordance with the letter of the will. There are no duties to be performed by them, in regard to the conveyance,. which involve the exercise of judgment or discretion on their part, or in which they are to act in accordance with the direction of any other than the testator. In the language of the books, the testator has been his own conveyancer. He has expressed in definite terms the form of the conveyance which the trustees are to make, the property to be conveyed, and the persons to whom the conveyance is to be made.

An executed trust may at the same time be an active trust; that is, the trustees may have active duties to perform during the continuance of their estate, such as the care and improvement of the property, the receipt and application of its income. If, however, at the termination of their estate, the property will, under the terms of the trust, vest in the ultimate beneficiaries without any act or duty on the part of the trustees, it is an executed trust at the date of its creation. Mr. Perry, in his treatise on Trusts, says (sec. 359): “All trusts are executory in one sense of the word; that is, the trustee must have some duty, either active or passive, to perform, so that the statute of uses shall not execute the estate in the cestui que trust and leave nothing in the trustee. But such is not the meaning of judges when they speak of executed trusts and executory trusts.

Mr. Pomeroy (2 Equity Jurisprudence, sec. 1000) says: “ Giving property to a trustee upon trust to convey to a person, or upon trust to convey it upon certain specified trusts, does not render the trust executory”; and gives the following quotation from the opinion of Lord St. Leonards in Egerton v. Earl Brownlow, 4 H. L. Cas. 210: “All trusts are in a sense •executory, because a trust cannot be executed except by conveyance, and therefore there is something always to be done, but that is not the sense which a court of equity puts upon the term ‘executory trust.’ A court of equity considers an executory trust as distinguished from a trust executing itself, and distinguishes it in this manner: Has the testator been

It is sometimes provided in the instrument creating the trust, that after the execution of the trust specifically prescribed the trustees shall divide the trust property, and upon such division convey it to certain beneficiaries then to be ascertained. In such cases the trust is executory, and the beneficiaries take no interest in the property, except by virtue of the conveyance. The trustees are clothed with a discretionary power, which can be exercised only by themselves, or under the supervision of a court of chancery. (Gilman v. Reddington, 24 N. Y. 9 ; Manice v. Manice, 43 N. Y. 303 ; Cooke v. Pratt, 98 N. Y. 35 ; De Kay v. Irving, 5 Denio, 646 .) So, too, when the conveyance is to be made in accordance with the appointment of a designated beneficiary or a third person, the trustees have an active duty to perform for the purpose of completing their trust, and the author of the trust is not his own conveyancer. In the present case, however, the trustees are not directed or authorized to divide the trust property, and any attempted division by them would be in excess of their power and nugatory. They are authorized simply to convey, upon the death of the last surviving child of the testator, one fourth part of the estate to the descendants of his daughter Theresa Oelrichs, one fourth part to the descendants of his daughter Virginia, and the remaining one half to his brothers and sisters, and to the children of any deceased brother or sister by right of representation. The conveyance, as thus authorized, is of undivided portions of the estate, and those to whom it is to be made will hold the same as tenants in common.

In Bruner v. Meigs, 64 N. Y. 506 , the testator devised his whole estate to trustees upon a trust, among others, to divide the same into as many shares as he left children surviving him, and to apply the income of each share to the use of the child for whom it was held, and upon the death of such child to convey and transfer the share of the estate held for it to certain designated beneficiaries. The court held that “ the power and direction to transfer and convey the share or portion of the estate to those entitled under the will, after the death of the

In Weston v. Weston, 125 Mass. 268 , the testator gave the residue of his property to trustees upon the trust to apply a portion of the income to the support of the widow, and after her death to “convey, transfer, and pay” the trust estate to his children. The court said: “We are of opinion that the will gave to Nathanael and Lucy each a vested equitable estate expectant on the termination of the life estate of the testator’s wife, and liable to be divested only on her death during the life of the testator’s wife without issue. The interest in the residue was given by the will, not by the conveyance from" the trustees. Such conveyance is necessary only to make that a legal estate or interest which under the will and prior to the conveyance was an equitable interest. It was an equitable remainder after the equitable life interest of the tes

In Phipps v. Ackers, 9 Clark & F. 583, the testator devised his estate to trustees, in trust, to convey it to his godson on his attaining the age of twenty-one years. The question before the court was the right to the income that had accrued during his minority, and this was held to depend upon whether the remainder was vested in him at the death of the testator. It was held that the son took a vested estate in fee, liable to be divested in the event of his dying under the age of twenty-one. In giving his opinion, Lord Lyndhurst said: “The question to be considered is, whether the direction to convey makes any difference with respect to the disposition of the property. I am clearly of the opinion that it does not, and I agree entirely in what fell from Sir William Grant in the case of Stanley V. Stanley, 16 Ves. 491, that the right is not affected by the direction to convey, but that the conveyance must conform to the right, and that the will itself is an equitable conveyance until that is displaced by the legal conveyance which is directed to be made.”

In Campbell v. Stokes, 142 N. Y. 23 , the testator devised his estate, in equal shares, to trustees, to be held by them for each of his children, to apply the income thereof to their use, and, upon the death of a child for whom the same was held, to convey, transfer, and pay over the share to its issue. Upon this provision of the will the court said: “ The direction that the trustees, on the death of the parent, should 1 convey, transfer, and pay over and deliver ’ the parent’s share to his or her issue was inserted, to emphasize the right of the remainder-men, and was not the foundation of their title. The whole scope of the will negatives the idea that their rights were dependent in any way. on the action of the trustees, or that the vesting of their interests awaited the exercise by the trustees of the power to transfer, convey, and deliver the share to the issue so entitled. The testator did not intend to die intestate as to any portion of his property. The whole was given to his children and their issue. The trust was created to secure to his sons and daughters the beneficial enjoyment of their several shares for life, and to preserve the principal for their issue.”

In Toms v. Williams, 41 Mich. 566 , the testator devised his estate to trustees, in trust, to make certain dispositions of the

In Cushing v. Blake, 30 N. J. Eq. 689 , it was held that “ a mere direction to the trustee to convey will not convert a trust into an executory trust. If the trusts are fully and accurately expressed, the rights of the beneficiaries are not affected by the direction to convey. The conveyance must conform to their rights as declared, and the equitable estate vests immediately.” (See also Gilman v. Reddington, 24 N. Y. 9 ; Moore v. Appleby, 36 Hun, 368 ; affirmed 108 N. Y. 237 ; Doe v. Considine, 6 Wall. 458 ; Bowen v. Chase, 94 U. S. 812 ; Scofield v. Olcott, 120 Ill. 362 .)

Townshend v. Frommer, 125 N. Y. 446 , is relied upon by respondents as holding a different rule in New York from that expressed in the foregoing cases from that state; but we are of the opinion that it was not so intended by the court. The rule which was declared in Moore v. Appleby is neither overruled nor questioned in the opinion, and in the subsequent case of Campbell v. Stokes the rule in Moore v. Appleby was followed, and Townshend v. Frommer disregarded; and later, in Paget v. Melcher, 156 N. Y. 399 , it was, in effect, declared that a direction to the trustees to convey the estate to a designated class upon the termination of the lives for whose benefit the trust was established, created a vested remainder in that class. There are also other expressions in the opinion which are not in harmony with other opinions by the same court, and it is in professed disregard of Bowen v. Chase, 94 U. S. 812 . The action was ejectment, for certain property which had been conveyed to a trustee, subject to a mortgage then existing upon it, upon trust to apply the income to the use of Mrs. tiurtis during her lifetime, and “upon the further trust” to convey the same, at her death, in fee-simple, to such of her children as should then be living. This mortgage had been foreclosed in an action brought in the lifetime of Mrs. Curtis, against herself and the trustee, but her children then living were not made parties to the suit. The plaintiff’s right to the land was derived through conveyances from the children of Mrs. Curtis,

Under the provisions of the will the trustees take an estate in the land devised to them, during the lives of the testator’s children and the survivor of them, and no more. There are no words therein expressing an intention to confer upon them a fee in the land, its language being that they are “ to have and to hold the same, in trust, during the lives” of the testator’s children, and in further trust to dispose of the income “ during % the life or lives” of said children. Section 871 of the Civil .Code provides: “When the purpose for which an express trust was created ceases, the estate of the trustees also ceases.” The “ estate of the trustee” is that which is necessary to enable him to execute the trust imposed upon him. The estate embraced in the trust'—-that is, the extent or quantum of interest taken by him—is determined by a consideration of the objects and purposes of the trust, rather than by a strict application of legal rules to the construction of the terms of the conveyance by which the estate is limited to him. (Sears v. Russell, 8 Gray, 86 .) If an estate in fee is necessary to enable him to perform the duties of the trust, such estate will be held to have been taken by him, even though it is not given in express terms, and, on the other hand, though the form of the conveyance is such as would imply a fee, if necessary for the purposes of the trust, his estate will cease upon the complete execution of the trust. “ Where no intention to the contrary appears,

The provision in section 863 of the Civil Code, that, “ except as hereinafter otherwise provided, every express trust in real property, valid as such in its creation, vests the whole estate in the trustees, subject only to the execution of the trust,” is limited by the succeeding sections to the estate given to the trustee for the purposes of the trust, and does not include any estate in the property which is not required by the trust. (Morffew v. San Francisco etc. R. R. Co., 107 Cal. 587 .) This is clearly implied from the provision in section 866 of the Civil Code, that “ every estate not embraced in the trust, and not. otherwise disposed of, is left in the author of the trust or his successors,” and by the provisions of section 864, that', notwithstanding the provision of the previous section, the author of-a trust may, in its creation, prescribe to whom the real property to which the trust relates shall belong at the termination of the trust. If, in the creation of the trust, he desires to dispose of any estate in the property which is not embraced in the trust, he need not use the term “prescribe” or “shall belong” in order to make his purpose effective, but if he incorporates into the trust instrument an intelligible designation of the persons that he wishes to enjoy the property upon the termination of the trust, or to whom he wishes the property to go, he will be held to have “prescribed” an intention that the estate “shall belong” to those persons, and thus to have “otherwise disposed of” the estate. Whether he has prescribed any

The law favors vested rather than contingent remainders,

These principles are embodied in the following provisions of the Civil Code: “Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator’s death.” (Sec. 1341.) “A testamentary disposition to a class includes every person answering the description at the testator’s death; but when the possession is postponed to a future period, it includes, also, all persons coming within the description before the time to which possession is postponed.” (Sec. 1337.) “A future interest is vested when there is a person in being who would have a right, defeasible or indefeasible, to the immediate possession of- the property upon the ceasing of the intermediate or precedent interest.” (Sec. 694.)

The foregoing considerations lead to the conclusion, that by the will of Senator Fair an equitable remainder in his estate was devised to the persons to whom the trustees were directed to convey upon the death of his last surviving child; that this remainder vested in those persons at the death of the testator, defeasible, however, upon their death prior to the death of his last surviving child, and subject to open and let in after-born members, of the designated classes; that upon the death of the testator’s last surviving child the estate of the trustees in the property will terminate, and a conveyance from them will neither enlarge nor diminish this remainder, but it will immediately vest in possession without any conveyance; that the provision for such conveyance did not create any “ trust ” in the property, but was a mere direction to the trustees to make effective the other provisions of the will, and is not to be construed as one of the “purposes” for which the testator created the trust.

The will does not suspend the power of alienation for a longer period than during the lives of persons in being at the death of the testator. The fact that a child of either of the testator’s daughters, or of either of his brothers or sisters, may be en ventre sa mere at the death of his last surviving child, will not have this effect. Such fact cannot be invoked to impair the validity of the trust. It is only the power of alienation which the statute forbids to be suspended, and this power is not suspended by reason of any difficulty or inconvenience that may attend its exercise. The suspension of alienation which is aimed at by the statute is such as is caused by the instru

The decree of distribution should be reversed.

Rehearing denied.