In Re the Estate of Fair

Estate 30, 1901.] April F. No. In Bank. [S. 1491. FAIR,

In the Deceased. Matter of the Estate of JAMES G. L. CHARLES al., JAMES S. ANGUS et Appellants. FAIR al., Respondents. et Property—Invalidity.—An Trust—Express Convey Trust Real express convey property named trust to real to beneficiaries lawful, creating trust, under the statutes instrument not state, thereby, this and but forbidden and is invalid void. —

Id.—Purpose The Provisions as to Uses Trusts. Code purpose provisions relating to uses and Code Civil system trusts in intricacies of the old real is to avoid the trusts, very limits, of uses and confine narrow them within specified in title on and to all others than uses exclude those and trusts. — Convey—Construction— Id. in Trust Will—Invalid Devise Operative — Estate in Remainder not Created Absence will, convey devise, transfer Words.—A in a trustees therein, being real named invalid and to beneficiaries void, disregarded, creating as be and cannot be construed must beneficiaries, are an in remainder in the where there no estate which, aid unlawful other in the without the words will any to the asserted remaindermen. A devise estate operative creating without cannot be construed devise to create it. words sufficient Id.—Liberality of Will—Intention of Testator of Construction —Language — Intention.—The rules of Will Lawfulness construed, liberally the intention of to effect is to prevail, must do testator, that the intention of the testator not construction, dispense rules of that the intention other language of and that the in the intention must be found unambiguous appears language must clearly therein which lawful, be effectuated. cannot else Inapplicable — English — Id. of Uses Invalid Trust Statute — English of uses is inconsistent with and statute Executed. system conveyancing registry, repugnant whole to our state, any use or trust. Under operate, in execute does not force, legal estate vests and trusts now of uses our statute beneficiaries; state, of this law and under view executed. cannot be deemed invalid — Convey. in trust to Powers Trust Id.—Powers meaning of the Civil on article Code uses trusts within article, being in that and, enumerated are forbidden trusts, J., J., J., Harrison, Beatty, [Temple, C. dis- by its terms. senting.] of Fate. — Inapplicable — Id. Vested under Estates in Remainder Rules Convey.—The estates applicable rules to vested Trust remainder, de- devises, is no apply under there valid cannot where vise, present convey, a trust to can vest no named, persons whatever in who of certain of beneficiaries classes convey- happen contemplated to be at for . alive the time ance, right to acquire contingent right who can than a other convey. enforce the execution of the trust to — op Convey Id. Invalid Trust Death after Children—Trust por op convey Children Vitiated.—An trust to invalid Lives certain living other at the time of the beneficiaries who should be conveyance, expiration after his chil- of a trust for the lives of dren, benefit, dispo- for their for the vitiates the testator’s scheme sition of'his carries the otherwise valid with for the of lives the testator’s children. — devise Id.—Estate in Fee A Intended to be Vested in Trustees. trustees, power convey, apply to sell and and to the income of during the estate of the testator for the benefit of his children lives, their and to transfer and of the estate residue certahrgrandchildren living upon and other beneficiaries the death child, surviving of the last is intended to create an estate in fee in trustees, and the of the estate is not measured quantum lives of the children. Id.—Legal Express Varied.—The Effect Intent not legal expressed effect of the intent of a testator not be varied guise misapprehended under the of correction because the testator illegal executing If an expressly law. mode of the intent is provided, power legal the court has no to substitute a mode not ex- pressed. op'Author op Id.—Power Trust to “Prescribe” Ultimate Owner ship1— n op Code.—The conferred section Construction creation, Code the author of a 864of Civil its “prescribe the real to whom to which the trust relates belong trust,” failure or event termination of the shall property subject to “transfer or devise such execution trust,” authorizing cannot be construed as void trust to prescription, "a to be transformed into valid expressed manner the trust. otherwise Testacy — Ordinary Import of Favor Law Id.—Limit supporting testacy in the direction —The favor law Words. go length wresting cannot its a will words from their under giving ordinary import, meaning wholly unjusti- them a forced anything contained the instrument. fied op up Large Id.—Tying Estate, Children, and Disinheritance kindly disposed tying up is not toward the of a law (cid:127)Favored.—The years, by long period scheme for which includes vast children. of the testator’s disinheritance of Pair. City Court of APPEAL the Superior from decree of the estate distributing County partially San Francisco of a Slack, Judge. decedent. Charles W. the court. opinion facts are stated in the Hayne, Y. Pierson, Mitchell,

Pierson & M. Robert William Trustees, Garret for Executors McEnerney, W. Appellants. L. Rob-

Van R. Paterson, Paterson, & and James Rodgers inson, Beneficiaries, for Appellants. Minor Garber,

Knight Garber, Bishop, & Boalt & John Heggerty, Herrin, and Charles S. F. Wheeler, Wilson, & William Wilson H. L. Gear, Fair, for Charles L. Respondent. Virginia Fair, & A. Oelrichs and

Lloyd Wood, Theresa Respondents. of appeal partial is an from decree

GAROUTTE,J.—This distribution. case, Mr. McFarland

Upon former of this Justice decision following adopted now rendered the which is opinion, — of therein discussed: opinion upon questions the court brevity, to at the of to necessary, expense “It seems in full. By pre- the fifteenth clause of the will here state large given number of ceding legacies money clauses and of of consisting mainly to brothers sisters persons, various and certain of their children. The said fifteenth decedent, — most im- in italics the which are clause and ivords put we — at a as follows: arriving conclusion—is portant “1 remainder of rest, residue, my All the and es Fifteenth. effects, and real, mixed, and whatso tate, personal, devise, bequeath I and situated, give, and ever, wheresoever to and the survivors of named, hereinafter my unto trustees in office,in them, following and their successors to say:— is to uses and purposes; same, trust, during to hold the lives ‘“To have and Fair, Virginia A. Oelrichs and and Theresa daughters, my of life L. and during son, Fair, survivor of Charles my of such survivor to and the death them, upon and of transfer of daughter descendants said my children or op Fair. and estate, Theresa the of said part property one-fourth trust and daughter to the children or said my descendants estate, and Virginia the property one-fourth of said part and the and estate one half of said remaining property brothers and and equal shares, my convey, transfer or and brother sister sisters, to the children of deceased any this clause by right representation. (The language of California, taken section Civil Code of state from.the exists, bear 3, subdivision it now and shall same section, subject, construction as of said how- said subdivision ever, to the of this provisions paragraph will.) sixteenth” die, either of no children or de- daughters leaving case my es- and scendants, one-fourth said trust part tate to her chil- herein directed and conveyed transferred dren to the chil- conveyed or shall be descendants transferred if there be none, dren other daughter, or descendants of my my shall be brothers conveyed same transferred sisters, and to deceased brother sister any the children as aforesaid. by right representation, my ‘“In trust, further, during life or lives said hold, them, manage, and the survivor of daughters son, estate, and and control the said trust monthly said my daugh- the net income derived therefrom to pay over the death of either equal proportions, upon ters and son third of daughters, said over one said net my pay entitled, to her living, income to if would be chil- she, be, my there dren or descendants, surviving otherwise death, life of during my son, said daughter, leaving children or surviving daughter, descendants, of said descendants, and if she then her said children leaves portion then said of said net descendants, or income children estate, rest and residue of part my of the and to to become provisions under the of this will, of as disposed be such son, of the one pay the death said over third of upon my he, be living, income to entitled, said net or to equal proportions, daughters, said two sur- my of them.’ vivor clauses of the other

“One or two will should be the seventeenth the appellants noticed. clause By briefly be others declared to the trustees are mentioned in Angus are they any authorized sell clause; fifteenth reinvest the proceeds property, sales, invest portions other apply the proceeds improvement to lease other property, to purchase acquire or such or lend any portion borrow and to the property, repayment money as secure they advisable, deem may of loan make compromises by mortgage liens, and other they generally and to settlements, handle nineteenth, see fit. case provided clause it is By trustees, one of death, resignation, etc., any remaining trustees, authority shall them, two any ‘ to fill the and the title writing, declaration in vacancy to the trust shall in such trus- property and estate vest new tee, with the jointly others, necessity without of formal any such conveyance By new trustee.’ clause twenty-one testator declares as ‘I make no for provision any follows: children of L. my son, Fair, Charles born before or whether after son, this will, any provision nor for Charles my said L. Fair, other than that provided the “fifteenth” (15) para- graph hereof.’ It may be, to hereafter perhaps, necessary mention some of the other clauses will. “ In determining whether or not the trusts declared in the fifteenth clause valid, are and most primary important consideration that an express trust to real 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 such although some of their arguments do contend however, such trust is valid. such a Clearly, trust is made our code invalid. Our subject law shows intent frauds, avoid intricacies, concealments which were under the possible old of trusts system and uses, whereby title to real to be in property was allowed one and the person beneficial use in another, to such an extent that the confusion following was intolerable; the purpose of the code provisions is to confine clearly trusts within very and to limits, narrow allow them in a only few instances might where they specially used to subserve proper and purposes. Section 847 necessary of title IV of the Civil Code provides ‘Uses and trusts in relation to follows: real prop- are those erty specified this title’; and sec- tion title, same is as ‘Express follows: trusts may created for following purposes.’ Then follow subdivisions, providing four purposes which express

528 Cal. Estate of Faib. trusts them includes trust to may created, neither of real convey be an incident property, as except only the trust ‘to sell real apply dispose proceeds in creating accordance instrument trust.’ And as a trust to to beneficiaries real convey was one law, clear recognized well the common it is by quite provisions abolish, these of the code intended to abolish, Therefore the decla- attempted such trust. do. ration of in the trust, decedent’s to ‘transfer and con- vey,’ so far real as intended to be affected property was thereby, was real (and property, only, void involved (Bennalack case). Richards, 406; v. 116 In re Walkerly, 108 Cal. 656.1)

“Our provisions about uses and are taken clearly trusts from those of York on the subject. same Section New 857 our code is nearly with section 55 of the identical Revised York, Statutes of the main difference being New that subdi- 1 vision of said section 55 for an merely provides express ‘to sell lands for the benefit of N. Y. (4 Stats., creditors’ Rev. ed., 8th p. York, and it 2437); was held New both before and after the of our that there adoption codes, be no ex- could trusts press land, those enumerated in except said section 147, 55. In James, Judge 16 Hawley v. Wend. Bronson says: ‘But longer trusts, there can no express such except are statute, enumerated and by defined and these are all enumerated section.’ Gilman fifty-fifth v. Redding- ‘ ton, 15, 24 N. Y. the court say: Trusts land to a are not enumerated beneficiary statutes uses and and in trusts’; 44, Hotchkiss v. 36 Barb. the court Biting, say: ‘The therein mentioned simply premises, reservation, subject person persons such as the writing should plaintiff appoint. npt wife This is law, authorized one of the trusts is therefore absolutely foregoing merely The of many void.’ few other New point. (Townshend York cases same v. 125 Frommer, Yates 9 Barb. Yates, 340; N. Y. v. 458, 459; v. 9 Campbell Low, Church, v. 590, 591; Presbyterian Barb. Voorhees 17 Barb. 105; Platt, N. Y. 38; 98 v. 9 Hagerty Hagerty, Hun, Cooke 176.) provisions statutes contain for ‘powers York' New trust’. code, created our are not be noticed hereafter. Rep. 97, and note. 49 Am. St. the trust But although that counsel for contend appellants suggested various be held void, will, upon still the in remainder estates

theories, devising to be construed ought as the the In one persons phase of the classes. designated to be seem arguments, convey’ words ‘to transfer treated, in a plead- might surplusage as we treat substantially, but this deed; or a ing, covenant for further assurance do not or entirely precede view is for the inadmissible, words follow, any are supplemental to, not additional or merely which, other aid by themselves, words and without ‘to to the convey,’ words would devise estate whatever asserted different remaindermen. The been case would if there had been an devise direction independent followed to the trustees to to the that case the devisees; an and the estate, convey- words of devise would have created ance been con- except, perhaps, would have unnecessary, true, venient and additional of title. is as counsel evidence that courts are liberal and say, indulgent the construction This been from an in the period history has so early wills. in a law, the common when it held that, word necessary create a fee ‘heirs’ where there were so, in the instrument other intent to do showing words at that time although absolutely ‘heirs’ was necessary, no deed, fee, to create matter other language what was used. grammatical or informalities, errors, which, Technical words language, inapt express evident intention of legal be testator, though construed as the proper legal will had been but there employed; must be some lan- phraseology a litigant to effectuate that claims used to have guage testator. Counsel speak the intention rights been ‘devisees,’ and that no say conveyance was necessary, devise,’ ‘under ‘devisees’ took a vested, al- because, defeasible, fee, remainder in and that although the though estate, still the legal the whole direction took to con- trustees void; render ‘devise’ but all does assumes vey from the trust to there convey, the will, a de- that, apart is not fact. Of remainder; course, vise is not ‘devise’ necessary; technical word any other precise, of the same expressive action or language design would word there in this is no such sufficient; language. There subject, whatever other than the language —34 Cal. CXXXII. Fair. these words direction to eliminate transfer and and to convey; dece- of all the would be to estate, after the death leave dent’s children, of. entirely undisposed rule

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

‘belong enumerated. to,’ ‘vest in’ the of persons classes Moreover, appoint- when come for we provision ex- ment there he trustee, new find that we necessary, ‘shall vest’ pressly provides that the title to the trust in the conveyance trustee new the necessity without from the trustees,—thus material, other showing how mind of the testator, former that the trus- provisions were the tees should convey.

“The has principle a testator the intention which clearly in his and that-— expressed be followed, will must be applying principle at cannot case bar-—the will construed ex- intending clearly direct devise where pressed intention otherwise, and that there cannot devise without operative it, to create is aptly words sufficient illustrated in goes Cal. 337. That case Young, even further applying necessary than it is principle go at bar, case for there the will showed on its face the testatrix was unlearned and. unskillful as conveyancer, while here the express design stated lan- clearly legal guage and Young adhered to. In the persistently case words to be ‘To were, Young, my construed C. A. husband, bank book gold shall handet to him my and chain, watch two deeds. After my also husband deatt go two deeds shall to Katarina Muhr’; contended that the devising should be construed as an estate in the land described in the deeds to husband life, Muhr; remainder in fee to Katarina the but court held that was, intent the express merely, the deeds should deliv- amounted to and that ered, nothing, there were no ope- in the rative will which constituted of the words devise land. Henshaw, delivering Mr. the of opinion court, Justice other said, among things, as ‘There no follows: of delivery deeds the testatrix’s lifetime. during these What validity from will, if, then came possessed therefore, by act testatrix, title to these passed, lands we must find them operative both an intent devise will words again, must, itself, ‘There intent’; effect will them, intent to operative clear devise words suffi- found Buller, and then the devise’; language to create J., cient 1 Dacre, Bos. & P. 251, quoted Dacre v. is in the case with ‘I testator agree may as follows: express approval, he pleases, the court by intentions what words is so to his Cal; 532 Fair. stand, pos- expound every may expressions his word the apparent sible. according to pronounce court is in the be found intent intent must testator, but that conjecture words of the not to be collected will, is himself expressed justice dehors the chief my lord the testa- case, in a has not been asked question late as the his answer.’ tor, have been conjecture it is but what would stated 143, Judge Bronson James, 16 Hawley Wend. v. is to intent testator rule ‘The rule that the as follows: connec- necessary has no govern the construction wills con- bequest is tion the devise inquiry with whether ascertained When we have sistent the rules of law. make of the testator intended disposition what particular arises whether estate, then, before, question and not made is not actually If the disposition the will is valid. law, and must good, the rules of is inconsistent with thought the testator have effect, be carried into whatever if the hand, other act; about the on legality law, hap- contrary made is whether disposition actually information, the or the of accurate through design want pened declare it void.’ worthless, and we have no choice but to The case at bar is within declared clearly principles; these clear, go that the here the intent was whole estate was them and there conveyed, ope- to be trustees, course, if an estate in remainder. Of rative to create words trusts, one of subject void, created to several estate be others, separable from the the estate and the latter is legally if the creation of trust; vests, unaffected void execution of a void then it can upon the depends come into existence. never parties, discussing point both above

“Counsel for case, points as other commented noticed, well York cases, on a line of New which Townshend v. largely Mitchell, N. Y. Mead N. 210,2 17 Y. Frommer, 506, and 64 N. Y. Moorev. Meigs, Appleby, Hun, Bruner v. In the opinions cases, instances. some these 368, are extent, followed, examples to some of former there is trusts, powers, uses, estates, who were on wont writers fully learning, abstruse and to use indulge very language ambiguous character, indefinite somewhat after rather 2 455. Am. Dec. some

the methods of the there is but, metaphysicians; while upon all, apparent they in cases, these inconsistency that examination, proposition, close found to establish aor remainders, whether there a grant in a direct mere trust to no estate is time, at future convey so determined vest until the execution of the is to be conveyance, the intention testator in his will. by expressed exactly-like case Townshend almost Frommer, v. supra, the facts bar, the case at it here proper briefly state case, of that In that case and the conclusion of court. mortgage, Curtis, being Mrs. the owner of lands subject in conveyed trustee, pay same to a over the further yearly during life, income herself her ‘ lands, trust that her every part trustee shall said them, ‘living decease, to her children at her fee-simple,’ and the surviving children such of as then them foreclosed, dead.’ The mortgage was afterwards certain children living joined of Mrs. Curtis then were not as parties to the The plaintiff foreclosure suit. under claimed a convey- from ance and the children, defendants under the fore- was, suit, question closure not whether or the children had conveyed to plaintiff who estates the property which them made necessary parties foreclosure suit. The held that the trust to convey, although court invalid as one by statute, yet, under another permitted provision of York, might be held statutes New valid a power ‘ but that it conferred no interest trust; estate, during the any further life, upon class of intended grantor’s beneficiaries; necessary parties so foreclosure extinguishment that the the grantor suit; sale destroyed foreclosure as to trustee the bene- and therefore power, plaintiff acquired ficiaries no inter- And in that under his deed.’ so case was held, est as we bar, at that no estate in the in the case land hold vested in the classes, of the enumerated because that was persons not the expressed of the testator the will; intention and the in- case at bar of the testator was much tention more pro- in the case than of Townshend positive nounced Frommer. though is contended appellants, even trust statute, under our it should be yet be void considered use, English as a executed statute of merely uses (27 There is in the VIII, great briefs chap. 10.) Hen. deal of 534 Cal. Estate of Faik. discussion statutes, of the question English whether certain old including the state; this uses, statute of of parts of law but for necessary the purposes of deem it this case we do not to follow that extent, definitely or to great discussion any determine the question. The only declaration our law the subject Code, is contained 4468 the Political section of which is as far as England, ‘The so follows: common law of is not repugnant of to or constitution inconsistent States, United state, of the constitution or laws the rule of decision all the courts this state.’ This of ‘ declaration only includes of England,’ common law statutes, makes no reference either English whatever to ancient or modern. Of course, speaking, strictly very essence of law; is, common that it is it is statutory law the lex non from scripta, distinguished the lex which scripta, is made acts of by English Parliament. The original colonies, which afterwards became the American Union, states of were governed, before Pvevolution, the American laws of England, both common statutory, they so far as ap plicable conditions; to their and after the separation, gener ally by declarations, constitutional statutory few instances judicial construction, the acts Parliament had passed been before named periods certain became the common law of those and in original states; other states original states, which were afterwards carved out certain English statutes, old generally by constitutional express declarations, statutory were considered part common 15 Harris, those states. In Norris law v. it was that in intimated American states erected territory over from than England, derived countries other where neither the common nor the statutory England law ever there is no formerly prevailed, presumption that the common exists, itself declared except expressly by the constitu law such states. It was so expressly tions statutes held Herr Col. and the Johnson, 393; 11 current of authority v. seems to although (Hamilton be that Nevada way, Kneeland, v. 1 Blanchard, 9 Nev. 40; 101; Cook, Ex Evans parte Nev. v. 11 On held otherwise. this question, Nev. it was see 69) Matter 108; Knowlton, 61 Commonwealth 2 Mich. v. Mass. Lamphere, 309; 8 Pick. Sackett, Bogardus v. 534; Sackett v. Trinity Church, Paige, 198; Henry Salina, Hill, 532; Levy Bank 5 4 v. 6 Pet. 110.

McCartee, frequently authority In 4 Commentaries, (an Kent’s ‘ uses English doctrine cited), said merely convey under trusts, Henry VIII, the statute of 27 introduced thereon, ances founded been very generally have course, into the of this jurisprudence country’; which introduced means that been true; only and under methods quite large number states in this state noticed. case circumstances above called, question the our has been in attention which which in 267, Chandler, Chandler 55 Cal. which raised, is ever v. was noticed be decided. We have as passed unnecessary it was bearing and a of the authorities briefly, the thus few question not it interesting question; it as is it, because is on here, the do necessary upon we pass question definitely cases, of future as not to the decisions so embarrass so, do the great meaning be of The of might importance. it where ‘ ’ statute of or trust the uses executes use phrase, statute, under that or substance, that, grants in A simply, of, C, the or for, lands to B in C immedi use trust devises for B title the legal use, takes the as well as beneficial ately Trusts, Now, on nothing. (2 Perry par. what 298.) takes constituting be considered as the common as may law ever Code, section 4468 the Political prevails still adopted 1 far to or repugnant as it is not inconsistent so with . . . only state’; 4 constitution laws and section the as ‘The rule provides code of the common law, follows: same are to derogation in thereof be strictly construed, that statutes The no to this code. code application has establishes the law the subjects to which it respecting this state relates.’ Title ‘ the II of Civil Code the part IV of establishes law of this respecting’ trusts, provision uses there is no state in of the English uses, to that statute of similar which vests title in the cestui trust. There legal was at que the one time then 848 included in said section title IV, what which person ‘Every who,by virtue of any reads as follows: transfer possession is entitled to actual of real devise, property, and profits thereof, rents is to be the receipts deemed therein, same quality legal dura have conditions, same as is the tion, subject beneficial expressly repealed but that section was on interest’; March 1874, following it, as sections as 20, desig well referred 850, and 851, same subject. nated Cal. 536 Fair. 1 in Except 863 the said title is as follows: Moreover, section in real hereinafter every express otherwise provided, property, creation, valid as such in its wholeestate vests the trustees, subject execution trust. only take interest in beneficiaries no estate or therefore, enforce performance clear, of the trust.’ that, uses, under our legal statute of estate vests English Indeed, repugnant statute of uses is beneficiary. to our conveyances, form, whole which is system simple and inconsistent purposes system registry. with the our (Gorham Daniels, Moreover, judicial 23 de v. Vt. 609.) not, our here knowledge, cisions this state applied have — English at uses, least, statute of we have been referred so; any decisions here have done on the contrary, here always gone decisions theory remedy of the of a use or an equitable right holder a decree in equity (Estrada v. conveyance. Penniman, 19 Cal. Emeric 26 Cal. 249; 119; v. Murphy, Cal. 458; Blanchar, O’Connell Greer Dougherty, v. v. 197.)

“In Blanchar, say: court ‘The supra, Greer alleged to have been controversy conveyed the year trustee, a “in for use benefit trust, 1853 to and of Harriet By M. and S. means of that Risley.” conveyance the Risley in in vested equitable premises was as Risleys and a joint-tenants ’; merely this is declaration of the principle all in through our decisions: that such a which runs case the estate, in the vests equitable only, beneficiary; while under the a uses, case, in such the legal title English statute the statute of Again, uses executed have so vested. those only there passive,—that where nothing trusts which were was a do, conveyance as where there him, for the trustee was another, or he terms, for the use of stood in where seised to he another, permit or where was use suffer some- a special it did not execute or active trust thing,—but where duty performed by to be trustee; there some was and a trust, an active and therefore convey was trust to executed. 309, sec. Trusts, principle 1 on correctly stated Perry if ‘Therefore, any agency, power duty, as be im- follows: a a limitation to trustee, as trustee posed on rents, estate, ... in convey or to all these heirs to pay cases, like operation in other cases, statute is 537 Fair. excluded, estates.’ equitable and the or uses remain mere trusts In 1 as follows: Trusts, 210, Lewin on the rule is laid down also the act of ‘Special Henry purview trusts are not within a trustee, on as VIII; therefore, any if agency imposed be trust, to rents or pay limitation to A and his heirs, upon estate, all the trust is of a convey cases, in these ... as special uses character, of the statute is effec- the operation statute of Moreover, English excluded.’ under the uses tually and, a could executed; valid or trust be we have use in seen, state a trust is invalid. Therefore, law, under at any in the case bar view was not (cid:127) executed. “The contention, although void, trust to ‘ bemay held in good power convey,’ a trust to cannot be maintained. York are statutes, very which similar Hew ours, in real property those trusts as to enumerating which are alone a in valid, provide for trust to con expressly power but there vey; provision statutes, is no our although such had 860, we such a one time. It section short title Code, IV of the same which declares what trusts Civil are Where an valid, what was as follows: express any as to real is created for provision purpose not section, enumerated trust vests preceding such no estate trust, trustees; directing or authorizing the act which performance may lawfully performed power, subject under is valid as to the pro powers relation to such contained title V visions of this two other on the was followed sections part.’ subject, but all three and in the repealed same year the on the V, subject title entire which was ‘powers,’ which sixty on subject, sections and to contained over refers, wholly above also quoted repealed. said section meaning of title respect operation IV, With in relation to real trusts property may declares what what is no not be there distinction created, between to and a in trust A mere power convey. naked power at the not, holder; exercised or will but if be can it is a trust. In Sugden of it be on imperative, Powers, exercise that author, is the nature having very said of a power vyill and election ‘left to the free of the party to to be execute not, equity say reason not he will shall it or which execute ‘But in laying down this follows: broad rule it,’proceeds oe Fair. mere powers distinguish we between must be careful a The between of trusts. distinction powers the nature Lord Powers,” as and trust marked and power a is obvious. They imperative.” Chief “are said, Justice Wilmot has never are they at whom party acts to be done the will leave obligatory and are are given. always imperative, Trusts sometimes trusts intrusted. But of the party the conscience a trust intrusted with a man be blended; are powers given him, which power of a by to be the execution effective it, if he to execute refuses in that case imperative; is rule that general on the having it, equity, executed die without into execution.’ land, carry the trust is will subject Perry the same Powers, Upon on (2 Sugden 158.) are powers that ‘mere Trusts, author, having said on ‘It says as is donee,’ follows: discretionary with purely trust, or powers powers coupled different with and mere trusts. powers . . There are mere trust. . imply given they whom powers party There are also Courts consider required to execute. intrusted with much of the character of kind of partake this last so fail it to allow executed, a trust it, execute it in the place ofthe donee to execute failure powers such Lord observed donee. Hardwicke In all cases, than powers. called trusts rather to be ought in according construed must be or trusts powers these instru from whole gathered parties, tention of clear, therefore, Trusts, 248.) par. ment.’ on (1 Perry to convey, is a trust within convey’ in trust to ‘power that, being IV, any within article meaning said article, this it is article by said trusts within category valid do not think it necessary view we Under this forbidden. taken of subject either of the other views notice appellants. respondents deal has been about the differ-

“A said counsel good of much contend, the differ- want ence—or, appellants flowing from direct consequences devise, ence—between a distant a trust to at flowing period from and those then be in might classes existence. certain who persons material difference is not to the deter- of that The quantity to be question here involved. question mination do? Did he did the testator What devise determined or did he devise the in remainder? whole fee to estates vested Fair. Estate of all of his the death to after upon trustees trusts con- to consider If, children? however, important were one of those flowing from sequences, quite plain it is those from the flow acts are different from those which would very made a direct had bar, other. at the testator If, the case named of the classes devise in remainder to the persons death at the testator’s will, those of the latter who were alive estates; the interest of would taken vested immediately have land, ownership each a and been would have advantages legally with all the and rights, powers, been a such an interest. If there had direct devise belong to children, to the of the testator’s trustees for the lives with there classes, remainders to the said would have been per- said to take the life estate to sons in esse of classes end at time, such taken vested re- present persons have a remainder confers a mainders; present right ‘such fixed rises to the of an dignity to future enjoyment, in the the remainderman land, portion invests Am. & ownership.’ (20 Eng. seisin, property, Ency. a remainder Law, 840, and cases ‘Such cited.) may devised, notes to assigned, (Id., p. 840, limited over.’ a remainderman has a cited.) cases Such status which he gives rights remedies; him many necessary party foreclose, etc., for himself partition, may suits about the land, damages waste, maintain suits recover further the pursue etc. It is needless incidents such an contained in the but the trust to will vests estate; named; in the classes persons they estate whatever ‘ seisin, ownership.’ of the It property, merely no portion classes, of certain named may happen who gives persons remote, (none uncertain time need at a whom be in be alive time), contingent right present at compel existence trust to are convey. They in the simply the execution mentioned in section 863 of the Code, of those category Civil that ‘the beneficiaries take no estate or in- it declares where but enforce the performance of the terest trust.’ presented

“There other considerations counsel of are question validity or inva- sides, bearing both here under discussion, of the will trust clause lidity those heretofore noticed, than consequence are of less they already expressed; owing views covered mostly of Faie. gone, already has opinion great length to which re bemay notice. special passed must be without say whom marked, man’s generally, while prop and valuable is a proper his land shall when he dies go public policy rule of right, still there is no law erty way make to discover some diligent calls a court to be to determine who shall a man’s forbidden scheme good that our true after his death. is fifty years his property during of the of alienation a suspension code permits the bar, in the case at lives where, and that being, lives be, may suspension very persons, are those of young selected half a but where events, century; of for in the natural course lawfully accomplished, this has not been to do attempt the a condone the unlawful why court should is no reason there against the of the is general policy law attempt, of the ness of it for out keeping long periods of up the tying ordinary from business apart of alienation the current the legal And then the of the rights heirs, whom purposes. some of are entitled to intestacy, case gives property law court 656,3 In 108 Cal. this Walkerly, consideration. Estate of Block Walkerly ‘The testator as intestacy said: must the harsh result which follow void to his heirs. It is true that such descend property will intent, but the testator must do more than not the testator’s right an intention to disinherit before the heirs’ evince merely He can be cut off. must make a valid disposition of succession Vincent, 2 204; v. Ves. Jr. (Harbergham his property. 150; 117 Sherman, 16 Wend. James, Haynes v. v. Hawley convey, sought conclusion as to the trusts to N. Y. Our 433.)’ the fifteenth of the dece be created clause that reached the learned judge is the same dent, that are namely, they void. below; court judge with- learned of the court agree “We also below trust to carries it the the invalid with otherwise that children, for the lives testator’s and that valid trust trust failed. Of course, general the whole rule therefore that there are settled, where valid invalid clauses is well can question whether valid clauses will, in a stand or not invalid ones are so upon whether inter- depends cannot eliminated them without woven 3 97, Rep. and note. 49 Am. St.

interfering with the main scheme of testator. changing cor- v. Wend. Darling Rogers, Verplanck Senator stated the rectly good part rule as follows: .‘When will and had in if it part, valid is void part otherwise works such distribution of the estate from as, testament whole together, taken evidently design never of the testator. good far part Otherwise when is so independent have stood had the testator beeii invalidity aware And in rest.’ the celebrated Tilden case (Tilden Y. 504), 130 N. the court ‘The Green, say: invoke appellants aid of the principle, where several are trusts created are independent other, each and each com- itself, unlawful, some which plete lawful others be separated from each may other, and which illegal off and one legal be cut permitted stand. This frequent application wills, rule is construction in aid applied it can assistance of the manifest testator, never where intent would lead to result the of the purposes to contrary injustice work among beneficiaries, or the testator’s the scheme the disposal defeat In the at bar, case it is quite his clear from property’ the of the the trust as to income that during the of lives children, and the trust the testator’s the convey corpus after their death to certain of the enumerated persons, inseparable of were of one parts scheme; entire classes no reasonable ground for the supposition and there if that the latter trust was he void, he had known would have former to stand. Upon the such a supposition allowed we hold that he would have have been willing to merely would to the trustees during the lives of his children, devise be divided equally them, income to between the the allow undisposed of himby go reversion entire the heirs at law. that was not his intention. His' clearly, But, manifest pur- none of his property go should was, either to pose any persons or to other heirs at children, law. He intended, to the trustees and devise anticipated the through conveyance — course, he for, must be deemed to have them, been igno- of the trust to illegality convey, the sup- rant of have be performed,—to dispose would of the posed tempo- during lives, children their to his income ultimately rary 4 St.Rep. and note. Am.

the fee entire leaving part corpus undisposed of; evidently and his division of the income was based consideration of the persons who would would not But ultimately get property. corpus mere creation of an estate in the trustees for the lives for the children, benefit of the latter as beneficiaries income, leaving law, go reversion to heirs at would been have inconsistent the most determined purpose with the testator. children, such event the three them- being the heirs at law, having selves also the income during their being and there no remaindermen to lives, complain or interfere acts in with their the title premises, be in a anomalous condition. somewhat It is not of alienation necessary inquire what of the fee the children would have under such if circumstances on upon holding trustees insisted under the income trust, or the children, whether both the having inheritance and, sub- the beneficial stantially, use, could compel termination of the trust. could They certainly, with consent of the trus- tees, the trust discharged (Civ. Code, sec. 2282); in which event would have the entire estate in fee-simple, present possession Of property. course, there valid, would be a duty upon the to hold the and possession trustees title until the death of all children, then it to persons the named convey being trust to classes; void, why should required against to hold the present trustees owners of the ? And else entire who would there be awith legal complain of the termination trust ? right And thus have, children would what testator expressly declared have, they should not vested present in his will estates in fee property. Moreover, the testator in the whole expressly and declared that no child of his son emphatically Charles should of and that part property, have Charles himself should one third of the nothing except income have during his life; the construction contended under for but, by appellants, under one would, view, have one third of Charles the corpus might, and upon property, happening of certain under all, and, it another events, view, have his children of to contrary testator; and take as the income large, be it very to Charles would given may well be supposed him might so that he given it be spurred that was to save of Faib. something for his children, and testator would have so given him much he that his children had known might inherit. For these reasons, well as others could easily suggested, invalidity we hold that the trust to scheme of the and car- convey destroys whole it ries the trust for the lives of the children.” The foregoing opinion disposes may what be termed the legal phases technical of the case, and we pass consid- of questions eration have largely presented themselves upon arguments, the last and called which were forth reason justices of the views the various of this court promulgated former decision. rest, “All the provides: residue, The will and remainder of estate, and effects, real, personal, my and mixed, whatsoever, situated, and wheresoever give, I and devise, be- my unto trustees hereinafter named, queath and to the sur- and to their them, in office, vivors successors in trust, for following uses and purposes; is to to say, and in trust, during the same, of my hold the lives daughters, Virginia Fair, A. Oelrichs and and Theresa of my son, Charles during and the life of Fair, of them, L. survivor and upon of said survivor and transfer convey the death to the chil- my daughter said or descendants Theresa dren A. Oelrichs, estate,” said fourth of and property the one etc. We are question confronted with a directly now construction; provision Does the will place namely, trustees a and convey transfer this estate to certain of trust to Fair’s kin- contrary, or, upon construed aas dred? direct those kindred? Simplifying proposition, yet devise exactly the same principle, aside from leaving the ques- us let assume provision be, perpetuities, tion of All my residue of I give, rest devise, unto my trustees, trust, for bequeath following that is say, to have and to purposes; hold, uses applying rents and months, profits thereof to the for six children, the expiration of the my six care months said transfer estate my kin- them). Doessuch provision (naming create a dred” trust in estate? trustees Thus pre- transfer sented, this does seem be question big one. Yet a argument, amount of learning, and wonderful law by counsel has been to aid eminent advanced most the court in Fair. Estate oe of the language giving construing the true this answer. not allowed court is mind, must he that the kept in order word, force the a sentence, construction a even rule, the that a and this is particular reached; bemay result to save necessary even though absolutely such construction the document from complete condemnation. lan- the

In the it is said: “Where case, Walkerly supra, unambiguous, and guage of provisions plain will is import natural it from its courts are not to wrest permitted bemay ... order to it from condemnation. save said all disposi- is to make valid wills, that intent testator’s author- tion not therefore of his . . But a court is . property. testator, ized and language plain modify vary if it cer- him, for even thus and valid will create new adopted interpretation tain have that the testator would Mow, was invalid.” attempt had he his own court, known illustration, was devised the trus- this under purposes. What are these tees, for certain uses 1. To hold the property are: for They uses and purposes? the care income to months, children; apply six fixed, to transfer and 2. At time period It is conceded that the certain kindred. trustees property to for certain uses in trust purposes; yet took the property plain convey appears palpable, to transfer to hold the used, as the trust from the language property income to the care of six children. months, apply things, do one of these there If there a trust created he The testator’s intentions the other. must be created do He he used. said he desired from words determined period, in trust for fixed hold the then trustees He intended certainly it. these transfer and words conveyance a deed of make property. that should they make a And should deed of intended prop- if he intended that they should he could only erty, used, words property. fee of the pass indicating deed simple, ordinary legal import, are words a conveyance, in an instrument used where a always party are the words A deed. layman would not pass hesi- desires that Fair in the declaration intended by tate a moment title to the pass should the trustees property by language can lawyer who see the astute other It is deed. as to the intention creation of Fair’s a trust While intention. see, we may in the that all trustees out to stands so contrary showing find in nothing the instrument, anywhere, pre- were intention. in this case Indeed, pleadings when the in allegation a verified pared filed the find trustees, we by the owners those pleadings the trustees were to effectthat these in etc. fee-simple trust, in absolute this words, the Stress is effect of by upon laid the appellants “ of,” fixing to have and the lives hold, trust, during to in the purpose estate of the plain, simple it is trustees; yet and effect fix trus- of that clause the time when and convey tees shall make the transfer conveyance,—shall to fix quantum estate. These words were used trustees, fix the fee day estate of but to when should be estate devised conveyed to the If the beneficiaries. trustees, for months, and to hold six have then to transfer and beneficiaries, to the would the estate in the trustees be an for We simply years? hold but, words, not; on the are assured the ctmtrary, hold, in trust, months,” for for six used the pur- would pose, and of marking should have the effect alone the time when the should be property transferred conveyed; and in no degree establish of estate quantum devised by the instrument trustees trust. These words not upon effect having any estate, there are quantum no in the instrument having any tendency other words to dimin- It under these quantum. seems, ish circumstances, that complete perfect if a fee ever could in a vest person, has in these trustees. from vested follows these views that the contention effectthat the appellants, trustees took only for the lives Fair’s children, an- estate or an estate for life- incidental fee which allowed them to sell and transfer during that period, cannot property maintained. contention, this closely Another view of allied to the one just considered, is found the claim that the will creates an estate trustees, in the life with direct devise to Fair’s kindred. claim based upon this concession (for And the purposes case, that Fair intended to create a only) trust to convey, provided means or mode him for by vesting the estate illegal, therefore, order out carry his being general intent kindred, in certain of his a legal to vest means by will be substituted court. mode In other words, Cal.—85 CXXXII. cre- contention intention is, that, Fair’s notwithstanding ate a trust may appear to transfer and convey pr'operty his the face in the dark- fire blazing will as as a plain ness of night; notwithstanding Fair have said may “ I hereby intend in a trust this to create trustees to transfer and benefici- convey my my con- give all aries,”—notwithstanding this, the court will cern to that void; but expressed intention, being the trust order that particular prop- these beneficiaries secure erty, will hold that it Courts passes to them direct devise. look startling askance at such a for it is proposition, the extreme. any general the first not find place, we do ultimate intent upon indicating the face of the document these beneficiaries shall take hook or property by crook. The intent find is an intent that take Vo only they we shall a certain of a to transfer specified way; namely, trust by way Can face of convey. that, counsel court from the say this instrument, there is a intent that these beneficiaries plain shall have this property, regardless way provided by testator for them regardless to take it,—indeed, everything? it Upon the seems that to it contrary, get only by of the route If way pointed out that route be will. out, how it at all? can from may they get say blotted Who the will but that the that they words testator intended trust, it it get by way get should at all? This enough court is not that Fair did he say wise not know was a trust to transfer and he creating convey when made his will. 123 Cal. it One In Estate is said: of these rules Young, nor firmly departed from, criticised, established never even intent will not be under the expressed guise that the varied is, because testator its misapprehended legal correction presumed is If legal The testator know law. effect. intent it is expressed intestacy, presumed of his will effect that The designed inquiry go he result. will not of the mind of the workings not, testator. It is What secret do but it What he mean? words mean?” did a general intent it be conceded may Let found indicating these beneficiaries should have the this mode only provided by still the testator for them illegal, prohibited by law, it this get is court has a In legal mode. to provide attempting no vest an power mode for the prescribed purpose if the estate, by the tes- op Fair. mode, to that tator their is courts cannot close illegal, eyes a A legal power substitute in lieu mode. valid thereof it; but a do trust, uses, might with statute without coupled If pro- the mode and the cannot be done. use, legal, substantials, vided testator but defective by the Then, a mode court not create mode. when the could new amounts court illegal, void, nothing, created is how says create The to Senator Fair: legal mode? law new Fair “You shall not create a trust to convey your property.” “I create a says: convey my property.” trust “The convey your court created to says: you dis- prohibited law; because wishes as to the void, your position your out, will be carried through devise, medium direct the same as exactly though entirely valid; created and the you you words used void trust be held to create a to create the valid direct This construction the instrument devise.” renders the law trusts of character forbidding absolutely nugatory, an accommodating demands exercise of spirit upon the Under part court, which the law forbids. of this law A in state, fee, to B, devise cannot be construction, rules of equivalent, by possible of a direct B. That is the substance of this devise to contention; but to the statute forbidding so declare shock the creation of character trusts of the here involved. this illustration, he said that there propriety may equal general in- B should the property; yet, by judicial tent that con- he it. get right could It is not the struction ever the court, inor other to evade a construction, way, rule by of law in result particular may that be reached. order some The court the as it it, declare finds law whatever the may result of be. may that declaration

Some attached importance by appellants section 864 of Code. That section provides: the Civil “Notwithstanding section, the last contained anything author of a trust creation, the real may, prescribe its whom property to the trust relates shall belong the event of the failure trust, of the or termination transfer may such devise subject to the execution of the trust.” property The facts not call for an analysis this do detail of case this section of In the creation of the trust the code. here involved, the trustor attempt has made no whom prescribe property shall belong in trust. event of failure or termination “ He If has said, section, may as he said under this the trust I have to transfer created the trustees hereby convey my reason not a and for that property is valid shall A fail, then I etc. direct that property pass,” this shall provision of that the case bring character in this will would directly within section. But the fails wholly testator insert the provision. Again, He to do it. makes attempt the section cannot be construed mean that the provided instrument will being void, language creating be treated and deemed the sec- mentioned in the prescription tion, and therefore the as it would pass exactly will have done if the had con- been valid. this Certainly, struction of the section was law- contemplated by never makers, holding for would be every void trust could transformed into prescription. valid If you eliminate the words “transfer and from the convey” will, then the beneficiaries take named would not at estate all, for the heirs of Fair would entitled to inherit Hence it. beneficiaries in the can the interest estate only come through them words “transfer convey”; and fee, are to take the and take it only through beneficiaries words, the medium of those trustees must have the fee vested they in order that transfer and them, convey it. The shall demands transfer and convey to the bene- make a ficiaries,—that is, conveyance the property to them, the title in them —that vest by a convey- give words To hold otherwise—to transfer and ance. con- meaning—is to wrest other them from some their usual vey” them import, give forced ordinary meaning wholly contained in by anything unjustified instrument. The in the direction of supporting law testacy favor cannot If the document lengths. under to these consideration had go and not would deed, court hold that these been take the estate by kindred would direct grant, the trust named We not. Yet the apprehend ? intent in being void both cases the rules of same, law as being construction of deeds the same. We cannot imagine stand and wills an estate be valid, would while same created created rights be invalid. deed devisees are no more more entitled to no protection, sacred, than are the heirs. of rights

(cid:127) convey trustees had the under Fair’s will power

away power granted the fee of this This property. them by appellants is said express However, it words. feeding that this fee character,—a simply was of a limited fee that to sell. the trustees portion authorized trust which be, that the stated another form the contention sell the trustees decided to they had the fee them if vested to hold property, had they no fee them decided vested a that is of property. be said such a fee may well that standing character. The nondescript fact, alone, trustees a convey were to sell the property authorized fee, points fee to the fact that the directly unerringly cast in For, fee, them. if they had no could they convey fee. And this in the power convey vested trustees to fee points equal certainty to the fact that testator when the said, trustees, “I hold for my my devise trust, to my children, vesting lives of trustees the during fee convey the and if period time, do not then convey during period, they shall transfer and convey my to certain my kindred,”—he meant, could only mean, by construction, rule every that the trustees were vested with the fee of his which fee they could parties during to third lives his children; if not so then conveyed, they should to these kin- dred.

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

For J., McFarland, J., concurred. Dyke, Van ' Estate hearing of HENSHAW, J., the former concurring. —Upon this I Mr. gave case assent reached my to the conclusion Justice Harrison, that an remainder in the estate equitable Fair was devised to the the trustees were persons to whom directed to child. surviving the convey upon death his last That the will a created I entertained convey, trust never any doubt. Not is the chosen only language apt well that purpose, not selected and only have its been phrases employed care, opinion sedulous it the only was the astute attorneys appellants who the prepared pleadings but, that a fee was in devised the to the addi trustees, this, tion to all the argu the last question propounded upon the ment of case satisfactory answer, has remained without my mind “If language is unanswerable: this does not trust to convey, create a different you what words would or could employ light create such a trust?” In the you oral and arguments, the last printed, upon hearing, after a more detailed and exhaustive consideration of author I am that in a ities, convinced natural desire to uphold last deceased, weight will of the due not given to the clear and explicit intent of the testator. While always opinion that a trust meant and in convey clearly created and that a such under the laws this state, is it then absolutely void, seemed to me that provisions in could sustained accordance with the doctrine of that under such a an holding cases trust equitable interest or remainder passes estate beneficiaries. The error came a give from failure to position recognition this due emphasized the fact demonstrated the last argument, in a those courts where trust to is only valid, or in those like York, its England, New where purpose is an enabling statute, as a effectuated in trust, has or doctrine been declared. this rule ever It is because the valid, legal and that consequently is estate vests estate, equitable interest trustees, instanti, eo fol in or to the legal, passes vests lowing beneficiaries. But state, void, this trust is where, where, conse can ever legal trustees, estate vest there can quently, support The equity. be no estate law whole trust has legislature prohibited to convey. is It void. a trust to be void. has forbidden such has declared from legal equitable interest by mode, separation of Faib. estate, under equitable court that the say can no more say it can than beneficiaries, such a void trust, passes think, I Such, that the to the trustees. legal passes us, as with where, argument jurisdiction unanswerable every express void by declared trust to prohibited estates vest equitable law. For can be said existence their notwithstanding beneficiaries owe mean void, it can trusts prohibited by law, is made legislative against that the inhibition certain trusts against the rule If trust utterly nugatory. vain and the violates Walkerly, in Estate example, restraints on for as alienation, of declared, not, as there 656,4 108 then be, Cal. the solution at estates, equitable, and being void, legal all that, trust but, rather, that, not void, to be created tempted likewise were in it is testator void, plain trust is what withstanding to the tended, equitable passed and it be held that estates permitted reason of will be draw which beneficiaries, by course, title. cannot be the Such, legal themselves law. a in creating power

To as uphold terms First, because trust, presents equally formidable obstacles. me, it intent, and obvious seems to was plain testator’s a point but an but if that create, trust; be power, explicit in and waived, trust, is it either must power power still legislature that the in repeal powers be held trust exist, that, if it did this abolished such else any power state notwithstanding declaration section 847 Civil in are relation real property uses trusts those Code, in in specified title; powers trust, are as which only law, all their labyrinthal to the common diffi- with known in force and sinuosities, are full effectwith us; culties great has at legislature pains simplified trusts that while estates, designedly intentionally perpetuated it has subject of common intricate and difficult the most law and, through trust, in has powers preserved cognizance, equity eliminate in attempted dealing which all the difficulties trusts. at because.powers common unquestionable full of uncertainty the New York abstruse law were all the abolition of de- expressly recommended codifiers 4 Rep. note. 49 Am. St. Fair.

dared Y. 233.) and reserved. N. (Jennings Conboy, had design the cumbersome which simplify system grown followed up at common commission Our code law. own York, proposed their example bodily and adopted New — following scheme. As sections: part of this scheme were the “ is cre- property Where an real express trust relation to sections, ated for in the any purpose preceding not enumerated trust, if such trust trustees; vests directing may act authorizing performance any which power under lawfully performed power, valid to such con- subject provisions powers relation Code, tained title Y of this sec. part.” (Civ. 860.) in this of a “Nothing power title the creation prevents for purposes express which (Civ. Code, 861.) created.” sec. “ trust,- case a trust is valid as a every power where in, the trust relates or passes real which remains to, entitled, subject persons succession otherwise Code, the trust trust.” sec. (Civ. execution 862.) under the properly placed chapter on uses and They

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

What, repeals? Can it said meant revivification abstruse they common-law argued it be that that fairly Can incomprehensible system? suited to and habits of better wants our people scheme taken from York, one New simpler by us after- than in And if this was mind of abolished? the revisers ward Fair. and legislature, and if in their the common-law contemplation n system those was revived these why, expunging repeals, their sections, careful to and to they report were so preserve, preservation of, certain The re-enact- other necessary powers? be- ment of unnecessary, these carefully preserved powers was cause other existent Can they any were common-law powers. meant, conclusion be reached than logically repeal that the the restoration of simplifi- a further powers, common-law cation York advance even the system, over New abolition many had which that state powers preserved, and the such as considered perpetuation suitable wants and habits of the of this simpler people state. do

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

That the void still be treated as ex- valid to the held to prescribed tent that testator must be per- or class whom the shall go upon sons the failure (Civ. Code, 864), or termination sec. is to mind my an untenable proposition. never, also There is or seldom, determining or in any difficulty whom whom the testa- means his trust tor or settlor that shall property descend or the termination of it trust; but does vest not follow that, this, because indicating from intent he pre- has means for an its accomplishment, scribed unlawful the result regard to the be assured without mode. In will case the rule of that on alienation, trusts violate restraints there is Estate of Faib. never any doubt the remain- whom the testator meant that der or reversion should but in has go; such cases no court ever selected the designated that, beneficiaries, and declared notwith- standing the fact that through their sole claim to title void is trust, nevertheless the that testator has indicated sufficiently upon the them, failure of the togo trust the trust is to and the having failed, once. There they shall take at no difficulty was Walkerly, the case Estate supra, determining to whom the testator that land should meant go, but the thought never entertained that after failure of was the trust persons regarded, these should still be the tes- within tator’s as prescribed him, intent to take in designated by the event of the failure of There, here, the trust. they as to take in the terms of the could conformity trust, take at all. So that if it be considered in this case that class, there an attempt prescribe it attempt either by a void trust an unauthorized invalid, the mode heirs may not disturbed their In “A rights. testator must do Walkerly said: than to disinherit, more an intention before the merely evince heir’s can off. He right of succession be cut must make a disposition case, valid cannot in this property.” We than in other, more substitute valid method for the invalid one so plainly designated.

For amplified preceding reasons opinions, seems ap- that parent the failure of the trust to defeats the testa- tor’s trust scheme. beneficial leaves whole interest and living the whole his children at reversion the time of his death,—a essentially result and radically at variance with sought accomplish. he The that which consequence, then, is the as he though same had died particulars, these intestate. at to his law, descend heirs provided state, in this that so those who are rules succession and direct of his blood succeed offspring immediate in- heritance. I concur in the judgment. reasons

For these J., dissenting.—I dissent. TEMPLE, have not powers prohibited been in this state, Convinced create them right unlimited, am I able associates do. my the will read I no'force in see the proposition the first place, we Estate must first though construe the were will as trusts not prohibited, and then ruthlessly. enforce the prohibition All contracts, in all and other instruments conveyances, writing, are to be force in construed with reference laws where they made, in mind with the idea constantly that they were made in of and to enforced view such laws under them. If fail we to do this, place we do ourselves in the position contracting parties, expect and could to understand the language are They presumed found.

know the and to law ordered their affairs reference have to it.

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

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

The will presumptions are in favor against The testacy, intestacy. presumptions in favor then the heirs cease. duty courts, then, is, to so will, if in reason it can be, prevent construe so intes- view, partial. Keeping therefore, tacy, total these propo- sitions,—-to wit, that the testator knew that a trust to convey in this and that a state, be created cannot be, can an estate trust cannot be created for a period also being,—let lives in us read unmeasured will. Fair. following “I give trustees,

effect: trust, for the my estate to uses and hold and to purposes; that is say: the sur- same, trust, lives during the children my transfer vivor of them, and the death such survivor my further, lives convey,” etc. during “In children the said control survivor, and of the to and manage and estate.” property

Here it the trust that the of expressly purpose declared that mentioned during his hold the trustees shall the estate the that lives, period, such and for during lives, only manage are control, trustees authorized to expressly trustees, are no further rents, collect etc. There duties as at the authority, no further to transfer and ter- save of the trust. This has all the authority mination attributes might although appropriate of also have been power, trustees, prohibited. had not such trusts been direction both, one course is appropriate unlawful Being equally the other we must testator meant to lawful, presume and the do. Nor do I lawfully he could see do that which how only the that trustees shall hold during declaration express regarded can be otherwise than his children as also of lives that shall not hold containing beyond the condition more plausible by rendered the fact time, and this is that such legal. to make the trust The required limitation was power executed, the death of the instanti, be eo towas survivor. and the persons executed, not then interests con- If instant, At that if not before, ascertained. veyed were alienable. estate became entire contend respondent to direction to I understand the children of the testator is a of mode the lives during hold conveyances are to be made. But it indicating when of only purpose deprive was me that seems control, manage, or dispose all his his children thereof, and to profits deprive enjoying estate, while all it. All this interest of his son accom- children trust. direction life was adopted plished by then ending trust; so passed to the a mode of purpose full testator beneficiaries accomplished. regard in that doubt the testator cannot desired to ac- we repeat, To To revenue for provide ample 1. each ends: these complish 2. her life. To prevent during his descend- his children Fair. 3. ants of Ms estate. inheriting son from of his any part Upon the of Ms estate death of half all children, give Ms one half to descendants other daughters, Ms brothers and sisters and their descendants.

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

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

such to certain authority purposes. Two afterwards, legislature repealed title V. So far as years matter, the affects this “ language repealing clause is only: V is repealed.” Title sections retained, however, Two were being to the title in regard transferred Section trusts. re-enacted as section without of a change 900 was word, and section 895 re-enacted as was section 858. Section of the death of one of provides event several donees a Section 858 for a power. provides power sale in a mortgagee. code, TMs is the instance in the as it now exists, any power authorized. expressly where The reason is not far to seek. Supposing for this authorization right respects create to be all other powers unlimited, right but for this power, section, create be such forbidden Fair. by the policy in this regard mortgages, state in which that the his con- mortgagee shall have, whatever the form tract may be, the declares right of This section redemption. an exception to that rule, Other sec- hence necessity. its tions recognize the be con- cannot powers, but existence sidered as to. authorizing them. I referred Section 860 have By section 781, a power of appointment prevent does not future estate limited to take power effect case such executed. This does regulates not authorize any power, but the effect. It does not supposed state the purpose of power, except that it must refer to a land. power

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

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

It seems to argued that the title on powers reality an- exception prohibition uses contained trusts IV, in title and that powers are trusts. For reasons many this cannot so. Section 846 forbids this construction. All could trusts be created specified that title. not there specified, Powers were but were the same statute limited in regulated, and another I title. all suppose admit that title IV has reference only to in real held for certain And it purposes. will not be contended that real or that in an a is power creating instrument interest is to the donee any conveyed power power. of a no power The donee has estate or in land, interest this, in equitable. And state there need be no legal equi in in any one, either the creation or the execution table An is example a of an power. case executor. power land, the donee of a He sell execute may estate need be created in equitable one. it, any (Morf R. Co., R. San Francisco etc. 587.) few first Section it was confessed, not, it must be did when regulated passed, prohibit for use of was powers, powers it, in the same into put statute. can a meaning How new then, or the title in does not refer to it which statute “It found, repealed.” which of title only says V, Legislative language can be deduced from some policy used in legislature. argument consists whole denunciations of trusts, powers, though pow- uses and contending ers were that the part thing, same legislature not limit strictly powers would trusts leave at large. It did once restrict use of and then re- powers, pealed the statute, face of section 4468 of the Political Code. doing it declared that common of Eng- law so. land furnish the rule upon subject.

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

But, it is contended, powers cannot in this exist state, for we uses, have no statute of and a power but the right to ap- use, which, point under the statute, to it the legal drew title. I presume it was never contended before that powers did hot law, at exist common and most likely learned counsel for not respondent do wish to be understood as contending for that If

proposition. they did not exist at common law, when were authorized? they Certainly statute uses. That recognized that statute common use as equitable estates, and its purpose was crush out both trusts and powers. right If the to create a did exist, one could not have been made to dispose equitable Why estates. were they effi- estates, cacious as to and of equitable no avail as to legal es- did the tates? how statute enable the land-owner to dispose through of freehold estates the medium of a power? (cid:127) doubt, Ho powers, profession, known are those their efficacy upon the statute of depended uses; and why, England, powers depended reason for their efficacy of uses because of the statute restrictions upon at existed common conveyancing law. This is most con- Estate oe Fair. introduction Sugden clusively elaborately by shown be- nor principally, It powers. only, work on of seisin, only by livery cause freehold could be created estate transfer, free- but because by public some other solemn futuro; nor hold to commence estates could not be created other given any grantor could a reserved it in der- charge upon any to limit the estate or create person original feoffment. The ogation of the estates created by to at common resorted author some devices proceeds show into mere interest how, changing beneficiary law, by attained, and alienation was of perfect almost freedom equities, a like freedom alien- uses, almost how, then statute he estates; and, finally, up sums as to freehold ation resulted in the following upon conveyancing, the effect of the statute altogether are not accord with vehement words, which learned counsel for powers by of trusts denunciation considered generally having as “The statute respondents: enabling the conveyancer to shift the effect had only words, mere in way another by from one to which legal but is law, common excellently adapted ill accorded with country. It, however, increaséd opulence also which effect modifications were legal repug- gave law, admirably but are suited to the the common vary- mant to has, mankind. moreover, had wishes ing wants introducing code of unrivaled operation equi- beneficial admirer of the every jurisprudence, table which law real to remain sacred, forever and uncon- must wish law. comparing rules what founded strict perform, actually intended to with what has per- statute was doubt that almost other hardly legislative formed, can one the confirmed habits of the opposed people in measure led to the would have same of their results. disposing legislature a lesson to the not vainly to operate This should for, opinion, although of general the current diverted- oppose old regain channel, its ultimately spite of time, for a Parliament, become a dead letter, acts of accumulated bring the most tendency wholesome strong laws disrepute.” into therefore, powers were created stat- repeat,

I in England, but, they depended existed uses; ute of because, statute, because, efficacy their from the relieved they restrictions that statute means of Faib. upon-alienation at and of course law, which existed common where these needed restrictions do not is exist statute give efficacy powers.

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

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

I only add that I still concur with Mr. Justice Har- in the that rison view the will also be maintained as a di- rect do devise, powers exist this state.

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

(cid:127) BEATTY, J.,C. dissenting. A careful consideration of the upon arguments advanced the rehearing of this case has con- me that the I opinion which vinced formerly expressed requires modification, and that especially my conclusion might intent of the testator be given effect as a direct devise of cannot be the remainder sustained upon the concession means chosen him for effecting the transfer There are unlawful. decisions which sustain, and others CXXXII. Cal.—36 Fair. Estate'of conclusion; sustain, such their expressions seem way, the other I authority am weight satisfied that the attempted

and that has testator appears whenever attempt unlawful, a method clearly transfer effect into fail. be carried must His intention cannot lawful ac- its for himby chosen by disregarding the unlawful means me, in complishment. therefore becomes essential ques- order to in the to determine case, reach conclusion unimportant. tion, treated as opinion former my be stated mind, may That itself to question, presents my trust, the testamentary thus: If, creation of valid termina- his trustees testator directs and empowers unlawful remainder, is that tion of the bounty? of his objects transferring means of and statute, course, by A forbidden trust to convey convey, a trust to to create attempts the will of Senator Fair and extent, grandchildren fail. If his must, it at to that least medium of such take through and can only brothers sisters all. cannot take at trust, they unlawful this is a térms say But to me it a misuse of to seems other pur- It a valid trust for perfectly trust to is convey. The conveyance and a term. lawful poses, make at the termination of the trust is are directed to trustees adhere to my original opinion, incident. I a mere still the will obvious its more construction although upon in-addition to convey, an trust to create invalid designed aof con- susceptible it is nevertheless trust or trusts valid reason, for that it which, to testacy, more favorable struction I think it can be construed as a still duty adopt. is our an added power a life estate only, the trustees of with devise opinion and I am not this shaken convey remainder, opinion in the of the upon much insisted so argument by essential to in fee trustees was court, that an estate of the testator. purposes out evident them to carry enable distinct from a convey, a power create lawful he could If could, under such power, only the trustees to convey, trust grandchildren remainder to the and transfer sisters, convey, could also sell but they brothers embraced in the of, any the proceeds reinvest authorized clause one trust, byas R. Co., San Francisco etc. R. do. empowered Morffew court that the donee of held testa- 587, it op Fair. an estate conveyance of mentary power make an effectual could the power true that she had It is no interest. is trust, case case would have been lawful as only cited to approved that this heretofore prove court has tbe deny—that it doctrine—which seem difficult abyas effectively conveyed under power trustee in whom the estate is vested.

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

Upon grounds I from the judgment dissent of affirm- ance. following opinion Harrison, is the Mr. Justice ren-

dered in Bank on the 26th of February, prior — hearing:

HARRISON, died, J.-—-Senator Fair 28,1894, December leav- ing testament, last will and which was admitted to probate the court for the and superior city county of San Francisco, No- 16, 1896, and testamentary letters thereon vember on the were issued day Goodfellow, Angus, same toW. S. James S. and Thomas Crothers, G. who were named the as its will executors. The left surviving him, law, testator as his heirs at three children; viz., Fair, Virginia L. Fair, Charles and Theresa Oelrichs, A. of Herman Oelrichs. Prior to his death, wife there had been child, one born to Mrs. Oelrichs Herman Oelrichs, Jr., who is living and an infant. Fair also left still him surviving three and sisters, brothers and certain two descendants of a deceased After the of four expiration brother. months from the issu- Fair. of of the anee of children letters the will, testamentary upon decedent court, made under sec- an application superior to the tion Procedure, 1658 of the distribution the Code of Civil to them of to the estate belonging of sundry parcels real estate of which their petition died in their seised, alleging father will, said and real said byof property disposed was not that, as the entitled heirs at were decedent, they law the to the executors Goodfellow, Crothers, same. and Angus, the will, and filed an answer also therein, as trustees named petition, that the said property denied they disposed by alleged by and virtue will, its provisions and undisturbed they entitled to full possession of all and rents, issues, and profits thereof, uses, for the and trusts mentioned purposes, and described in names of those will, said also the giving Her- had whose behalf claimed the been created. Oelrichs, man certain infant beneficiaries Jr., together with provided will, for in appeared the fifteenth paragraph therefor, by their and filed guardian ad litem appointed hearing peti- similar answer to petition. Upon for in tion, the court found that the trust the will provided and in its as to all of real null void was, estate, said his real creation, dispose that the testator did not and that are entitled to the petitioners by entered a decree of said real property; thereupon whole' them in as tenants in distributing equal same to shares Goodfellow, decree Angus, common. From this Crothers in their trustees under the capacity both appealed, has been taken executors; appeal also as also had beneficiaries, appeared on of the infant who behalf ad litem. guardian their held court ground upon superior invalid, to be which is maintained

created is, that it' herein, provisions contravenes the respondents Code, in that it authorizes of the Civil the trus- of section 857 surviving child of the testator, last death tees, the trust persons to transfer further The court held that this trust designated. therein connected with otherwise valid trust inseparably was so apply the income same to receive during lifetime, the testator their of the children the use of from flowing consequences of its inva- legal the that, view .Estate it intended that lidity, could not be that the testator presumed that latter trust held should be therefore effective. the entire trust had died invalid, was that testator intestate the complaint. as to the real property described The for the appellants concede that created merely of real to another purpose conveying property unauthorized; Fair, but claim that that of Senator provision will upon death of his last child the trustees shall surviving transfer and the trust estate to the therein des- persons ” he not one of created ignated, purposes which an executed trust; trust; created iswill that the an estate in trustees have auter property pur vie, terminate at the death of the last surviving which will child; at the death of the testator the persons whom he directed to be transferred and property conveyed were a remainder of his estate in pos- vested with which will vest at death of his surviving child, session last and that the then be in them neither nor require which will vested conveyance admit a from trustees for the purpose cloth- interest ing property. them It is manifest from terms of paragraph 15 of the will of the that his desire testator children should estate, interest his other than no the income thereof, have lives, their and that during they should have no voice in the or control of management estate; part his that no of his the income estate, thereof, or of should belong ever Charles; bis and that the death son issue last one half of his entire surviving child estate should belong daughters, of his two or of the to the descendants survivor half, equal the other shares, them, his brothers and their descendants sisters, by right representa- legal objection to the form in If there is tion. expressed, has become

desire has been dece- dent, the beneficiaries .therein named are entitled to of a testator The will is his expressed enforced. inten- accordance with dispose tion to his desires, expressed intention is conformity if this with the law, duty give it is courts to it effect. requirements to make a right owner testamentary to his choice according thereof own or preference disposition legislation, its exercise provision within is wise 586 Estate

limits fixed ought by statute is a sacred courts right, which always to uphold.

Certain well-settled rules interpretation are, the will shall effective, receive such make construction as it will rather Toland, than (Civ. void Code, sec. 1643; Toland v. 123 Cal. will, 140); that, of of interpreting two modes that shall be preferred prevent intestacy. (Civ. which will Code, 1326; sec. Le Cook, 410.) Breton v. 107 Cal. The primary rule of all interpretation that the is to be construed will according to the Code, intention of the sec. (Civ. testator. 1317.) For the purpose intention, ascertaining language employed by him is to be rules interpreted by legal of construction, and the used in the to be con- words clause strued are to consideration; the first his intention receive but is the ultimate object sought determining to be the con- struction to be given words, these and is to ascertained be “ upon a consideration of the entire must instrument. We take into account the other provisions and the general purpose deducible from its terms, for the purpose ascertaining the testator, intention of the expressed by language.” (Matter N. 538.) 145 Y. If this inten- Young, clear, tion is it will control the meaning that would otherwise to particular be given phrases words used him. When general intention is thus ascertained, it control any will particular intention merely which relates to the manner in general such intention is effect, to be carried into the terms employed by testator are to be liberally con- strued, for the it purpose giving it con- effect, provided the rules of Huse, sistent with (Welsh law. v. 49 Cal. 509.) “ a familiar rule in the It is in- wills, construction that the tention testator is govern, although opposed bemay of the will, words and that inten- general some is to control particular intention, tion especially when intention relates to manner particular gen- which the intention is (Malcolm eral effectuated.” v. Malcolm, 3 477.) The rule stated Cush. master of the rolls in 4 Woodford, v. Ves. Thellusson follows: “If the court general see a intention can consistent with of law, rules attempted the testator has to carry into effect in a is not the court permitted, give way effect to the intention, though particular mode shall general fail.” In determining language whether will permit will oe Faib. is, not effect given intention, the question construction,—a whether the bear other language will some the pro- construction or render intention, defeat the will void,—but per- visions of the will illegal will whether mit a Everitt, (Everitt lawful to have effect.” intention N. Y. 95.) ascertained, After has been thus the intention courts will then for the of deter- purpose rules of law apply mining whether can be carried into effect. such intention If it law, the be held in- contravenes any provision valid, not for the it not the intention express reason that does of the testator, permit not such inten- because will law tion to be carried effect. into

Section 857 of the Code limits the Civil creation express trusts in real property purposes therein enumerated. As section this not authorize the a does creation of real property for the purpose conveying it another, ought be held that such conveyance one of the “pur poses” for which the testator intended the trust created by will, unless such construction is demanded upon considera instrument, tion of the entire including objects manifest will, as purposes well as used language himby (Manice Manice, this direction to the Y. trustees. v. 43 N. lean in preservation Courts favor of all 362.) such objects valid can be from separated will those that are defeating general invalid, without intent testator. Harrison, 547.) 36 N. Y. (Harrison v. Section 1317 of the Code declares that “where intention Civil cannot have extent, its full it must have effect to effect as far possible.” Co., 339,5 United States Trust 131 N. Y. Cross prin be, stated to are by where several trusts ciple was created other, of each are and each will, independent complete which some of are itself, legal others illegal, and the illegal, be from the separated upheld can legal without defeating or injustice might what testator doing be pre illegal may be wish, the trusts cut off and sumed to the legal to stand. permitted therefore, of purpose, determining

For the whether the pro- conveyance for a will trust property vision defeats trust, to consider proper is whether such convey- the entire into effect the carrying intention of ance is essential the tes- 5 Rep. St. 597. Am. (cid:127) oe Fair.

tator death with at the reference to the of his estate disposition of his last intention surviving general child, whether his reference to the affected be in any respect disregarding this provision. sacrificed Substance is not to form, and if this the trustees provision direction to to do that which to do with- they would been authorized have out the direction, or if or the same result follow with would without such are or if conveyance, persons whom directed to transfer have property would same interest therein, not, whether such made conveyance is be entitled conveyance irrespective demand such provision, direction does a “trust,” become though even it has termed been so and the will, execution of the not to be held conveyance will one of the “purposes” the trust created. The trust created Fair Senator executed than an rather executory all of the trust; directions execution for its expressed so that the trustees to do nothing but to out carry provisions its in accord- ance the letter of the There will. are no duties to be per- them, formed regard to the which involve conveyance,. of judgment exercise or discretion on their part, or in are to act in which accordance with direction of any than the In other testator. the language books, of the the tes- has tator been his conveyancer. own He has in expressed definite terms form of the conveyance which trustees make, are to be conveyed, persons conveyance whom to made.

An executed may trust at the same time be an trust; active is, that the trustees may have active duties to perform during estate, of their the continuance such care and improve- of the receipt ment and application of its income. however, estate, at termination of their If, the property the terms of the will, under vest ultimate benefici- any act or on the duty part trustees, aries without it is trust at the date of an executed its creation. Mr. Perry, Trusts, (sec. treatise on “All says 359): trusts are executory word; is, one sense trustee must have some duty, or passive, perform, either active so statute uses not execute the estate in the cestui shall trust and que leave in the trustee. But such is not the nothing meaning judges of executed they speak trusts when executory trusts. Pair. of their These perfection words refer rather to the manner administering creation, than to the action of the trustee clear or so property. Thus a a deed trust created by has certain in trustee all that a its and limitations terms instru- nothing to do but to all the carry provisions out On ment trust. according letter, is called executed its con- other hand, an an estate trust is where executory settled, veyed to a or conveyed him upon trustee to be trust certain upon upon other or trusts, contingencies in certain or mere events, stated, imperfectly other trusts are these in a outlines of out stated, them are to be drawn afterwards according formal carried into effect manner, and are to be the final take form and limitations shall details under the are called given. They executory, directions thus future, but be- because the is to performed trust form and cause the trust to be molded into instrument itself is made or left perfected according to the outlines or instructions the settlor or The connection in testator.” indi- phrase clearly is used in the text “conveyed settled” and that the cates that these are used as equivalents, words be made by therein referred to is one which is to conveyance settlement. In note to this section the author way says: “ A mere execu- direction to render trust convey if the directions are clear and the limitations are tory, so so defined that there is to do but to certainly nothing convey accordance them. that the be execu- order there tory, construction, must be some room order to the intention of the settlor; determine to determine made, shall be not be intro- what limitations what shall duced into the to be made.” conveyance Mr. sec. Pomeroy (2 Equity Jurisprudence, 1000) says: to a trustee Giving property upon per- specified trusts, trust to certain son, upon executory”; gives following not render the trust does Lord opinion from the St. Leonards quotation Egerton “All Brownlow,4 H. L. Cas. 210: trusts are in a Earl sense because a trust cannot be executed except by con- (cid:127)executory, something done, therefore there is to be always and veyance, a court of equity puts upon that is not sense A court of equity term trust.’ considers an ‘executory from a distinguished executing trust as trust itself, executory manner: Has the it testator been distinguishes 570 Cal.. what is called, and very conveyancer? called, his properly own Has he left it to expres- the court to make out from general sions what his intention intention is or he ? has so defined that you has nothing have he but to take the limitations do ” given to you, and to them estates? legal convert into

It is sometimes provided creating in the instrument trust, that after pre the execution of the specifically scribed the upon trustees shall divide the trust property, such division to be convey it to certain then beneficiaries ascertained. In such executory, cases the trust except beneficiaries take no interest in the property, by virtue of The conveyance. trustees are clothed with discretionary them power, can only by be exercised selves, or (Gil under the chancery. of a supervision court of man v. 303; 24 N. Y. Reddington, 9; Manice, N. Y. Manice v. Cooke Denio, v. Pratt, 35; 646.) 98 N. Y. De Kay Irving, So, too, accordance when the is to be made in conveyance with the third appointment designated beneficiary person, the trustees duty perform active purpose of completing their and the author of the trust, is not his case, however, In conveyancer. own the present trustees not directed or authorized the trust to divide property, and any attempted them ex division cess of their power and are authorized sim nugatory. They ply convey, the death upon surviving of the last child of one testator, fourth part estate to the descendants of daughter Oelrichs, his Theresa one part fourth descend daughter half Virginia, remaining ants one sisters, his brothers and and to the children of deceased right brother or sister The representation. conveyance, authorized, estate, as thus is of portions undivided be made those to is to hold same as tenants whom in common. 64 N. Y. Meigs, Bruner v. testator devised his upon among others,

whole estate to trustees divide shares he left many surviving the same into as children income of each and to share to the use of the him, apply held, the death child for of such child whom was share of held transfer the the estate for it to cer beneficiaries. court held designated tain the share or portion to transfer and direction entitled under the after the death estate to those Estate oe Fair. require life, trust, cestui trust for not constitute a que did named.” estate to the executors and trustees vested 504, In Bacon's 57 Pa. St. devised property testator Appeal, trustees, in to the same to to receive the income trust, pay after their daughters, during his their respectively, lives, It decease to the same to their heirs. was respective that, through as the trustees were but the conduit "held, court pass, conveyance the title to no necessary, was was trust, state, “In this given will, when lands saying: is assigned to be when no other to conveyed, duty trustee, he has nothing when do enjoyment with only is an instrument to enable the cestui acquire legal estate, use has been que understood most, At conveyance unnecessary. can be but mat- ter of rather than The form, trust, of substance. cestui que to the entitled whole beneficial being enjoyment, and the trus- no having right tees interfere no it, reason is apparent title legal should be held why continuing in the latter. A right the legal from the severance beneficial ownership is be maintained some not to without reason. In the case before us, purpose trust was accomplished when Mrs. Ba- The testator did not intend con died. that the trustees should estate after her He hold death. contemplated its immedi- transmission the remaindermen,—a ate transmission by indeed, but conveyance, holding in trust for those in re- was, There nothing therefore, mainder. substantial to be se- treating the legal title as remaining cured in the trustees an interest in equitable Mrs. Bacon.” Weston, 125 Westonv. Mass. 268, In testator gave the of his trustees residue the trust to apply of the income to the support of the portion widow, and after “convey, transfer, her pay” death the trust estate to children. The court said: “We are his of opinion that gave Nathanael and Lucy each a equitable vested on the termination of expectant estate life wife, and liable to be divested only testator’s on her death life of the testator’s during wife without issue. The inter- given was est in residue by the conveyance the trustees. Such conveyance from" necessary only legal estate or interest make under the will and equitable conveyance interest. prior an remainder after life equitable equitable interest of the tes- wife, the tes- tator’s vesting on the death immediately tator.” devised Ackers, 9 Clark &F. the testator Phipps his estate to on trustees, godson it to his

attaining the before age of twenty-one years. question the court the during was to the income that had accrued right his the and this held minority, depend upon was to whether remainder was vested him at the death of the testator. held that to be was the son took a estate in liable fee, vested divested in the event of his under the dying age twenty-one. In to giving opinion, his Lord said: “The question Lyndhurst be considered the any whether direction to convey makes difference to the the I respect disposition property. am does I clearly opinion not, entirely and agree in what fell from Sir William Grant the V. Stanley case 491, 16 that the right Ves. is not affected the direc- Stanley, by to but that the convey, tion conveyance must conform the right, and that will itself is equitable until conveyance displaced legal the conveyance is directed to be made.” Stokes, 23,

In v. 142 N. Y. the testator his Campbell devised estate, shares, trustees, to to be equal held them for each the children, apply of his income thereof use, and, to their the death of child for the whom same held, to con transfer, pay over the share to vey, its issue. Upon this “ the of the will court The provision said: direction the 1 trustees, on the death of the parent, transfer, should convey, ’ and deliver the parent’s over share pay to his or her inserted, emphasize right the issue was of the remainder- men, the and was not foundation their title. The whole negatives idea that their scope rights were on the way. action of the dependent trustees, or that of their interests vesting awaited exercise by the trus transfer, convey, and deliver tees the share to The testator entitled. did not so intend to issue die intes of his The any portion property. as to tate whole was given their The children and issue. to his was created daughters to his sons beneficial enjoyment secure life, preserve for and to shares several principal their issue.” their Williams, 566, 41 Mich. testator

In Toms v. devised make certain trustees, dispositions estate n 573 1901.) oe Fate. income, thereafter to and convey transfer that the children of The court held his deceased brother. of a making mere execution would be conveyance fact, formal and that passed transfer of had already what the failure those deprive to make the conveyance “ them, The persons saying: had estates vested rights will itself out their points creates owners.” Blake, 689, 30 N. J. held that Cushing Eq. v.

mere direction trustee a trust convert into an trust. If the trusts executory fully accurately expressed, rights of the beneficiaries are not affected to convey. direction conform to their conveyance must rights declared, equitable immediately.” vests (See also Gilman v. 24 N. Y. Moore Reddington, 9; v. Appleby, Hun, 36 affirmed N. Y. 368; 237; Considine, 108 Doe v. 458;

Wall. 94 U. Chase, 812; Olcott, Bowenv. S. v. Scofield Ill. 362.) N. Frommer, Townshend 125 Y. relied upon by re- rule in spondents holding a different York New from that in expressed foregoing the cases from that state; but are of we not so opinion was intended by court. The rule in which was declared Moorev. is neither Appleby over- ruled nor questioned in the opinion, in the subsequent case of in v. Stokes the rule Campbell Moorev. Appleby was followed, and disregarded; later, Townshendv. Frommer in 399, was, effect, v. 156 N. Y. Paget Melcher, declared that direction to the trustees to estate to a designated upon the termination of the class lives for whose benefit the established, created a vested remainder in was that class. are also in the expressions There other opinion which are not other harmony opinions by court, with same and it is disregard Chase, Bowen 94 U. S. professed v. 812. The ejectment, for certain property action was which had been trustee, subject mortgage to a then conveyed existing upon the income to the apply trust to use of it, upon Mrs. tiurtis lifetime, “upon her the further trust” to during death, at her to such of her same, fee-simple, children as living. then This had mortgage been should foreclosed in in the lifetime of Mrs. brought Curtis, against an action her- but her children then trustee, living self were The plaintiff’s right the suit. land made was parties from the children of conveyances Mrs. through Curtis, derived 574 this foreclos-

and the under the sale right, through defendant’s was, whether ure. court question to be determined fore- necessary parties children of Curtis Mrs. determination closure, and was question underlying the trustee. taken character and extent of the estate the trustee upon The court conferred held that the deed to con- in trust a power entire estate in the and also land, Curtis; Mrs. death of vey the same to the children remainder, that, contingent therefore, the children had and conse- death, until her in interest which would not vest To the foreclosure. necessary parties quently they were the statement rests upon the extent that this decision caused contingency that the element of opinion exist whom would precise persons as to the uncertainty trust, and the the power the execution of right to enforce from the remainder uncertainty prevented that this conclusion of section 694 of the provisions at vesting, it is variance with not in accordance with state, Code of this the Civil Hun, (See 290.) v. Levy Levy, in that state. decisions other been does not have followed appear itself The case rule therein nor does the stated court, in that case subsequent of the courts of that state. the approval received appear court affirmed the rule the same Stokes, v. supra, In Campbell after and, saying in Moorev. Appleby, supra, declared Frommer, not intended to v. over- supra, of Townshend case “The said: case was declared, pecu- therein doctrine turn anomalous, complicated questions under involved liar Hun, v. in- Levy, and powers.” Levy trusts the law commenting and in upon Townshend question, same volved “ After an examination and com- Frommer, the court said: in the case of the decision Campbell that case parison Stokes, the unable to reconcile same. And been as I have v. in respect in latter case the the vesting laid down rule the most conforms to clearly to be which the seems estates of estates, defining statutes such the revised should of provisions in his treatise on Chapin, Express Mr. Trusts, followed.” be “ the case of But, general, Townshend v. 498): (p. says highly peculiar, and be regarded must treated Frommer appears The court itself to have been im- caution.” with case, the bemay of seen the peculiarity by its pressed phases “In of many view uses 461): (p. remarks not courts, it is remarkable that we presented trusts Fair. of easily not judges should find observations the opinions I am case. reconcilable a particular with the conclusion in not here question aware that the precise case presenting found, can in particular a likeness though some have may opinion in It the worthy features.” is also observation that who dis- Andrews, v. Campbell by Judge Stoles was written Frommer, sented from was the opinion Townshend v. judges concurred in by court, including entire five who had rendered the decision in v. Frommer. Townshend is quite which are possible that there facts in the record fully case, stated in the from court report which led to entire was the conclusion that the trustee fee took in the land, and that took estate therein; the children no this conclusion reached ground, also have been that, as the conveyed land was to the trustee awith by trust he “in required which estate fee- dee,d. he .simple,” took such an estate Doe (See Field, & Barn. Adol. 564.) Under provisions of will trustees take an estate in the land them, devised during lives the testator’s children and the survivor them, no more. There are no an words therein expressing intention to confer upon them a “ land, language fee its being that to have and same, trust, to hold the during lives” of the testator’s “ children, and in further dispose trust to of the income during % the life lives” said children. Section 871 of the Civil “When the provides: purpose for express .Code ceases, created estate of the trustees also ceases.” The “ estate of the trustee” is that is necessary to enable him the trust to execute him. imposed upon The estate embraced in the trust'—-that the extent or quantum of interest taken him—is determined by consideration objects and trust, rather purposes than strict application of to the construction of legal rules terms the conveyance limited estate is to him. by which (Sears v. Russell, 8 If an fee is 86.) Gray, necessary enable him to the duties of the such estate perform be held to by him, though been taken even it is given in express hand, on the other terms, and, though the form of the convey- a fee, ance such as would imply necessary for the purposes trust, his estate cease upon the complete execution of the trust. Where intention the contrary appears, Cal.

576 Estate the limited language creating used in the estate will Mr. purposes Considine, of supra.) its creation.” (Doe v. Perry that, says rule whether (sec. 320): general “The deed, words of not in the are or are inheritance the trustee the of the trustee to the execution will take an estate adequate trust, and the estate abridge no more nor less. Courts will the where of if the execution used, words of inheritance are trust the enlarge estate require fee, does not they and so Jarman, in his words of inheritance are used in a deed.” exactly treatise on take Wills, (vol. 2, “Trustees p. says 1155): re the trust of the of purposes interest quantity has used quire, the the testator question is, not whether an words estate limitation, adequate carry or expressions trust, the inheritance, exigencies the whether on appear subsequent the face or refer events can be testator’s satisfied death, fee-simple, demand what, by any, and estate.” less “ that, except provision Code, in section 863 of the Civil in real as hereinafter every express otherwise provided, creation, valid as such in its vests whole estate trust,” in the trustees, subject to the execution the estate given limited succeeding sections include trust, the trustee for the does not purposes in the the trust. any required by estate property which San etc.R. R. This is Co., Francisco (Morffew 587.) implied from the section 866 the Civil clearly provision Code, trust, embraced every estate not and not. is left in the otherwise author trust or his disposed of, successors,” of section provisions that', notwith section, the author standing provision previous of-a creation, in its the real prescribe whom may, property belong the trust relates shall at termination of to which trust, in the creation of he desires to If, trust. dispose is not embraced in any not use the term or “shall trust, “prescribe” he need belong” effective, he make his but if purpose incorporates order to intelligible instrument an designation the trust into enjoy property upon that he wishes the termi persons he or whom wishes nation of to go, “prescribed” held to have intention that he will es those and thus to belong” persons, tate “shall “other the estate. Whether he has prescribed of” disposed wise Fair. such intention a construction upon proper is to be determined the of the reference considered language by him, used with instru from the entire purpose will, manifest his as deduced for ment. In Ill. the Olcott, 382, provided will v. Scofield out of lifetime, the her widow, during of the support testator’s legacies the income of the and that certain estate, thereupon should be the trustees should payment their paid, upon Ms es all the rest and residue of convey, assign, deliver tate “The in this case to his son. The court said: testator evidently that the of the remainder of his es intended whole long tate should as she support be used for the his wife as lived, death, and that her and after the of cer upon payment tain legacies, son,” and held belong the residue should that notwithstanding it in him at death, vested his father’s the for a- him the trus provision by the will conveyance tee. the provided Gilman v. where will Reddington, supra, the of a certain the trust upon happening event ” was to paid, copveyed, or made to certain benefi over ciaries, it held that the term the during was title trustees, was in the a wholly estate, as there temporary was created a fee, devise of the future estate as a remainder in which in the beneficiaries at death of the testator, vested and that be entitled they would to the possession enjoy ment of the estate at the of the expiration trust. In Manice v. 43 N. Manice, 378, Y. the court said: “The direction to the trustees to pay principal grandcMld over share of each on or her attaimng age Ms is a twenty-one years sufficient it in devise will vest the devisee.” In it Moore held that under a Appleby, was statute con supra, taining provision the same section it designed an express that the trustee case of trust should be vested trust, during so much of the estate continuance of to maintain and necessary execute it, subject as should to- remainder should that that upon devolve it in remainder, entitled to persons remainder not defeated direction to vested was thus trustees to remaindermen upon transfer life for the cestui reason que death of that such direc a purpose express tion was author ized. rather than contingent favors vested

The law remainders, CXXXII.Cal.—37 and in case of the words uncertainty courts construe of a will early period so that the remainder at vest as possible. Words, conveyed in a land to be directing or divided among remaindermen after termination particular con estate -are always presumed, clearly unless trolled other instrument, to relate provisions beginning remaindermen, and not to the enjoyment by vesting right of the title in uncertainty them. The enjoyment, and not enjoyment, of its actual uncertainty is what renders the the person remainder When contingent. limited, whom the is ascer remainder, after life estate is tained, and effect is certain event is to take terms, it is a happen, vested its remainder, although, by may be entirely defeated the death before person of such the determination of present estate. is the particular effect in taking capacity possession, possession were vacant, become and not the certainty possession that will become vacant before estate limited in remainder deter mines, distinguishes a vested from a remain contingent 2 Littel, der. (Williamson Field, 553; v. Sand. Ch. Moore v. 41 4 Commentaries, N. Y. 66; Kent’s Where 203.) estate one life, is for such of his children granted as shall death, after his a future living present right to the posses once in children living, sion at such as are subject vests children, and let after-born and to be open divested as (Croxall die without issue. 5 Sherrerd, those who shall v. 113 Scott, 380; McArthur U. S. 288; Wall. v. Gilman v. Red 9; 24 N. Y. Brown Lawrence, 397; Cush. dington, Blanch Blanchard, 223.) 1 Allen, ard v. are embodied in the following principles provisions

These “Testamentary dispositions, Code: including the Civil devises to a on person attaining bequests majority, are pre- at the death.” testator’s (Sec. vest “A 1341.) sumed tes- disposition to a every person class includes tamentary answer- at description the testator’s death; ing when the a postponed to future period, includes, is also, all possession coming description before within the time to persons postponed.” (Sec. “A future 1337.) possession interest is there a person being who when would have right, vested indefeasible, possession immediate of-the defeasible ceasing intermediate upon precedent 694.) (Sec. interest.” Fair.

At the death of the of the benefi- living, testator there were ciaries designated will, the infant of his son paragraph 15 of Mrs. Oelrichs, five brothers and and the issue sisters, deceased brother. right These persons will immediate possession of his the termination property upon the estate of the trustees, their death defeasible, upon however, before that time; and if before the time for such possession shall arrive there shall be other born into the class persons provision whom is made in the included bewill provision. such If day had all testator’s children died after his own death, the estate of the have ter- trustees would minated, and the child of been en- Mrs. Oelrichs would have titled to the possession of half of estate, one his collateral kindred to the other half.

The foregoing considerations lead to the conclusion, will Senator equitable Fair an remainder in his estate was devised to the persons whom the trustees directed to convey upon the surviving death his last this child; that remainder vested in persons testator, those at the death defeasible, however, their upon death to the death prior last surviving child, and subject open and let after-born members, of the designated classes; that the death surviving testator’s last child the the trustees terminate, from them conveyance enlarge neither nor diminish imme- remainder, but it will diately possession any conveyance; vest without ” provision for did conveyance such not create mere to make was direction to the trustees the other not be provisions effective and is con- as one of for created “purposes” which the testator strued trust. longer The not for a suspend power will does of alienation during than at the death of persons being lives of period The fact the testator. that a child of either the testator’s sisters, or either or daughters, may of his brothers be en child, the death of his surviving sa mere at last ventre effect. Such fact cannot be impair invoked to of the trust. of alienation validity power is forbids to be and this suspended, the statute sus- difficulty may reason of or by any inconvenience pended its exercise. The of alienation suspension attend the statute is as is caused instru- by aimed at such Cal. Angus. Fair v. ment from arises some creating estate, and not such as the estate is on the disability part person whom vested, such from other infancy incapacity, any as or other Toland, cause outside of (Toland instrument. v.

140; Hotchkiss, 96 Moore 41 N. Y. Littel, 66; v. v. Beardsley N. Y. “A child Code 214.) provides: Section 29 of Civil so existing conceived, born, person, but not is to be deemed an far of its as in the event interests, its necessary subsequent pro- 1339 of the Code section Civil birth”; after a testa- conceived, vides: “A child but not born until to a class death, period disposition tor’s other when descrip- right answering vests in or in takes possession, tion class.” decree of distribution reversed. should

Rehearing denied. 30, 1901.] April F. and 1156. In Bank.

[S. Nos. 1155 JAMES S. Respondent, L. FAIR, CHARLES ANGUS al., et Appellants. Trusts Claim—Invalid under Determine Adverse Will Action to — — The decision Matter Affirmed. Case Deceased, ante, p. effect that the trusts Fair, relation Fair, deceased, G. of James under to real affirmed, of an void, applied decisive action invalid an adverse claim of the to determine trustees the deceased heir to certain real estate. under said will and beneficiaries Court of Superior the City from judgments APPEALS from denying orders Francisco new of San County Judge. Slack, trial. Charles W. appointed taken the trustees un- appeals

One of deceased, and other Fair, of James G. der the will Jr., and other Oelrichs, minors, Herman in behalf taken Paterson, R. guardian Van ad beneficiaries, by claiming opinion court. stated facts Further litem.

Case Details

Case Name: In Re the Estate of Fair

Court Name: California Supreme Court

Date Published: Apr 30, 1901

Citation: 60 P. 442

Docket Number: S.F. No. 1491.

Court Abbreviation: Cal.