In Re the Estate of Fair

60 P. 442, 132 Cal. 523, 1901 Cal. LEXIS 1101

• Court: California Supreme Court
• Decided: April 30, 1901
• Docket: S.F. No. 1491.
• Status: Published

Opinions

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This is an appeal from a decree of partial distribution.

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

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

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

"`To have and to hold the same, in trust during the lives of my daughters, Theresa A. Oelrichs and Virginia Fair, and of my son, Charles L. Fair, and during the life of the survivor of them, and upon the death of such survivor to transfer and convey to the children or descendants of my said daughter Theresa the one-fourth part of said trust property and estate, and to the children or descendants of my said daughter Virginia the one-fourth part of said trust property and estate, and the remaining one half of said trust property and estate to transfer and convey, in equal shares, to my brothers and sisters, and to the children of any deceased brother or sister by right of representation. (The language of this clause is taken from the Civil Code of the state of California, section 1386, subdivision 3, as it now exists, and shall bear the same construction as said subdivision of said section, subject, however, to the provisions of paragraph "sixteenth" of this will.) In case either of my daughters die, leaving no children or descendants, the one-fourth part of said trust property and estate herein directed to be transferred and conveyed to her children or decendants shall be transferred and conveyed to the children or descendants of my other daughter, and if there be none, the same shall be transferred and conveyed to my brothers and sisters, and to the children of any deceased brother or sister by right of representation, as aforesaid.

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

"One or two of the other clauses of the will should be briefly noticed. By the seventeenth clause the appellants Angus and others are declared to be the trustees mentioned in the fifteenth clause; and they are authorized to sell any of the trust property, to invest and reinvest the proceeds of sales, to apply the proceeds to the improvement of other portions of the property, to purchase or acquire other property, to lease any portion of the property, and to borrow or lend such money as they may deem advisable, and to secure repayment of loan by mortgage and other liens, to make compromises and settlements, and to handle the property generally as they may see fit. By clause nineteenth, it is provided that in case of the death, resignation, etc., of any one of the trustees, the remaining trustees or any two of them, shall have authority to fill the vacancy by a declaration in writing, `and the title to the trust property and estate shall vest in such new trustee, jointly with the others, without the necessity of formal or any conveyance tosuch new trustee.' By clause twenty-one the testator declares as follows: `I make no provision for any children of my son, Charles L. Fair, whether born before or after this will, nor any provision for my said son, Charles L Fair, other than that provided in the "fifteenth" (15) paragraph hereof.' It may be, perhaps, necessary to hereafter mention some of the other clauses of the will.

"In determining whether or not the trusts declared in the fifteenth clause are valid, the primary and most important consideration is, that an express trust to convey real property to beneficiaries is not lawful under the statutes of this state, but is by such statutes forbidden. The main contentions of appellants are based upon the invalidity of such a trust, although in some of their arguments they do contend that such a trust is valid. Clearly, however, such a trust is made by our code invalid. Our law upon the subject shows an intent to avoid the intricacies, frauds, and concealments which were possible under the old system of trusts and uses, whereby the title to real property was allowed to be in one person and the beneficial use in another, to such an extent that the confusion following was intolerable; and the purpose of the code provisions is clearly to confine trusts within very narrow limits, and to allow them only in a few instances where they might be specially used to subserve proper and necessary purposes. Section 847 of title IV of the Civil Code provides as follows: `Uses and trusts in relation to real property are those only which are specified in this title'; and section 857, in the same title, is as follows: `Express trusts may be created for any of the following purposes.' Then follow four subdivisions, providing the purposes for which express trusts may be created, and neither of them includes a trust to convey real property, except only as it may be an incident to the trust `to sell real property, and apply or dispose of the proceeds in accordance with the instrument creating the trust.' And as a trust to convey real property to beneficiaries was one well recognized by the common law, it is quite clear that these provisions of the code were intended to abolish and do abolish, such a trust. Therefore the attempted declaration of trust, in the decedent's will, to `transfer and convey,' so far as real property was intended to be affected thereby, was void (and real property, only, is involved in this case.) (Bennalock v. Richards, 116 Cal. 406; In re Walkerly,108 Cal. 656.¹)

"Our provisions about uses and trusts are clearly taken from those of New York on the same subject. Section 857 of our code is nearly identical with section 55 of the Revised Statutes of New York, the main difference being that subdivision 1 of said section 55 merely provides for an express trust `to sell lands for the benefit of creditors' (4 N.Y. Rev. Stats., 8th ed., p. 2437); and it was held in New York, both before and after the adoption of our codes, that there could be no express trusts as to land, except those enumerated in said section 55. In Hawley v.James, 16 Wend. 147, Judge Bronson says: `But there can no longer be any express trusts, except such as are enumerated and defined by the statute, and these are all enumerated in the fifty-fifth section.' In Gilman v. Reddington, 24 N.Y. 15, the court say: `Trusts to convey land to a beneficiary are not enumerated in the statutes of uses and trusts'; and in Hotchkiss v. Elting, 36 Barb. 44, the court say: `The trust therein mentioned is simply to convey the premises, subject to the reservation, to such person or persons as the wife of the plaintiff should by writing appoint. This is not one of the trusts authorized by law, and is therefore absolutely void.' The foregoing are merely a few of many other New York cases to the same point. (Townshend v.Frommer, 125 N.Y. 458, 459; Yates v. Yates, 9 Barb. 340; Campbellv. Low, 9 Barb. 590, 591; Voorhees v. Presbyterian Church, 17 Barb. 105; Cooke v. Platt, 98 N.Y. 37, 38; Hagerty v. Hagerty, 9 Hun, 176.) The New York statutes contain provisions for `powers in trust' which are not created by our code, and which will be noticed hereafter.

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

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

"The principle that the intention which a testator has clearly expressed in his will must be followed, and that — applying the principle to the case at bar — the will cannot be construed as intending a direct devise where the clearly expressed intention is otherwise, and that there cannot be a devise without operative words sufficient to create it, is aptly illustrated in Estate ofYoung, 123 Cal. 337. That case goes even further in applying this principle than it is necessary to go in the case at bar, for there the will showed on its face that the testatrix was unlearned and unskillful as a conveyancer, while here the express design was clearly stated in legal language and persistently adhered to. In the Young case the words in the will to be construed were, `To C.A. Young, my husband, my bank book shall be handed to him with gold watch and chain, also two deeds. After my husband's death the two deeds shall go to Katarina Muhr'; and it was contended that the will should be construed as devising an estate in the land described in the deeds to the husband for life, and remainder in fee to Katarina Muhr; but the court held that the express intent was, merely, that the deeds should be delivered, which amounted to nothing, and that there were no operative words in the will which constituted a devise of the land. Mr. Justice Henshaw, in delivering the opinion of the court, said, among other things, as follows: `There was no delivery of these deeds during the testatrix's lifetime. What validity they possessed then came from the will, and therefore, if, by the act of the testatrix, title to these lands passed, we must find in the will both an intent to devise them and operative words to effect the intent'; and again, `There must, in the will itself, be found a clear intent to devise them, and operative words sufficient to create a devise'; and then the language of Buller, J., in the case of Dacre v. Dacre, 1 Bos. P. 251, is quoted with approval, as follows: `I agree that the testator may express his intentions by what words he pleases, and the court is so to expound his expressions that every word may stand, if possible. The court is to pronounce according to the apparent intent of the testator, but that intent must be found in the words of the will, and is not to be collected by conjecture dehors the will, or as my lord chief justice expressed himself in a late case, as the question has not been asked of the testator, it is but conjecture what would have been his answer.' In Hawley v. James, 16 Wend. 143, Judge Bronson stated the rule as follows: `The rule that the intent of the testator is to govern in the construction of wills has no necessary connection with the inquiry whether the devise or bequest is consistent with the rules of law. When we have ascertained what particular disposition the testator intended to make of his estate, then, and not before, the question arises whether the will is valid. If the disposition actually made is not inconsistent with the rules of law, the will is good, and must be carried into effect, whatever the testator may have thought about the legality of the act; and on the other hand, if the disposition actually made is contrary to law, whether it happened through design or the want of accurate information, the will is worthless, and we have no choice but to declare it void.' The case at bar is clearly within these declared principles; for here the intent was clear, that the whole estate was to go to the trustees, to be by them conveyed, and there are no operative words to create an estate in remainder. Of course, if an estate be created subject to several trusts, one of which is void, and the latter is legally separable from the others, the estate vests, unaffected by the void trust; but if the creation of the estate depends upon the execution of a void trust, then it can never come into existence.

"Counsel for both parties, in discussing the point above noticed, as well as other points in the case, have commented largely on a line of New York cases, of which Townshend v.Frommer, 125 N.Y. 446, Mead v. Mitchell, 17 N.Y. 210,² Bruner v.Meigs, 64 N.Y. 506, and Moore v. Appleby, 36 Hun, 368, are instances. In the opinions in some of these cases, there is followed, to some extent, the examples of former writers on uses, trusts, powers, and estates, who were wont to indulge very fully in abstruse learning, and to use language of rather an indefinite and ambiguous character, somewhat after the methods of the metaphysicians; but, while there is some apparent inconsistency in these cases, they will all, upon close examination, be found to establish the proposition, that whether there is, in a will, a direct grant of remainders, or a mere trust to convey at a future time, so that no estate is to vest until the execution of the conveyance, is to be determined by the intention of the testator expressed in his will. The case of Townshend v. Frommer, supra, is almost exactly like the case at bar, and it is proper to briefly state here the facts of that case and the conclusion of the court. In that case, Mrs. Curtis, being the owner of lands subject to a mortgage, conveyed the same to a trustee, in trust, to pay over the yearly income to herself during her life, and upon the further trust that her trustee shall `convey said lands, and every part of them, in fee-simple,' to her children `living at her decease, and the surviving children of such of them as may then be dead.' The mortgage was afterwards foreclosed, but certain children of Mrs. Curtis then living were not joined as parties to the foreclosure suit. The plaintiff claimed under a conveyance from the children, and the defendants under the foreclosure suit, and the question was, whether or not the children who conveyed to plaintiff had estates in the property which made them necessary parties to the foreclosure suit. The court held that the trust to convey, although invalid as one not permitted by the statute, yet, under another provision of the statutes of New York, might be held valid as a power in trust; but that it `conferred no interest in the estate, during the grantor's life, upon any further class of intended beneficiaries; and so that they were not necessary parties to the foreclosure suit; that the extinguishment of the estate in the grantor and trustee by the foreclosure sale destroyed it as to the beneficiaries of the power, and therefore plaintiff acquired no interest under his deed.' And so in that case it was held, as we hold in the case at bar, that no estate in the land vested in the persons of the enumerated classes, because that was not the intention of the testator as expressed in the will; and the intention of the testator in the case at bar was much more pronounced and positive than in the case ofTownshend v. Frommer.

"It is contended by appellants, that even though the trust to convey be void under our statute, yet it should be considered merely as a use, executed by the English statute of uses (27 Hen. VIII, chap. 10.) There is in the briefs a great deal of discussion of the question whether certain old English statutes, including the statute of uses, are parts of the law of this state; but for the purposes of this case we do not deem it necessary to follow that discussion to any great extent, or to definitely determine the question. The only declaration in our law upon the subject is contained in section 4468 of the Political Code, which is as follows: `The common law of England, so far as it is not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, is the rule of decision in all the courts of this state.' This declaration includes only the `common law of England,' and makes no reference whatever to any English statutes, either ancient or modern. Of course, strictly speaking, the very essence of the common law is, that it is not statutory law; it is the lex non scripta, as distinguished from the lexscripta, which is made by acts of Parliament. The original English colonies, which afterwards became states of the American Union, were governed, before the American Revolution, by the laws of England, both common and statutory, so far as they were applicable to their conditions; and after the separation, generally by constitutional and statutory declarations, and in a few instances by judicial construction, the acts of Parliament which had been passed before certain named periods became the common law of those original states; and in other states which were afterwards carved out of the original states, certain old English statutes, generally by express constitutional or statutory declarations, were considered part of the common law of those states. In Norris v. Harris, 15 Cal. 253, it was intimated that in American states erected over territory which was derived from countries other than England, and where neither the common nor the statutory law of England ever formerly prevailed, there is no presumption that the common law itself exists, except as expressly declared by the constitutions and statutes of such states. It was so expressly held in Herr v. Johnson, 11 Col. 393; and the current of authority seems to be that way, although in Nevada (Hamilton v. Kneeland, 1 Nev. 40; Ex parte Blanchard,9 Nev. 101; Evans v Cook, 11 Nev. 69) it was held otherwise. On this question, see Matter of Lamphere, 61 Mich. 108; Commonwealthv. Knowlton, 2 Mass. 534; Sackett v. Sackett, 8 Pick. 309;Bogardus v. Trinity Church, 4 Paige, 198; Henry v. Bank ofSalina, 5 Hill, 532; Levy v. McCartee, 6 Pet. 110.

"In 4 Kent's Commentaries, 299 (an authority frequently cited), it is merely said that `the English doctrine of uses and trusts, under the statute of 27 Henry VIII, and the conveyances founded thereon, have been very generally introduced into the jurisprudence of this country'; which is, of course, true; but that only means that they have been introduced in quite a large number of the states by the methods and under the circumstances above noticed. The only case in this state to which our attention has been called, in which the question was ever raised, isChandler v. Chandler, 55 Cal. 267, in which it was passed as unnecessary to be decided. We have noticed the question thus briefly, and a few of the authorities bearing on it, because it is an interesting question; and as it is not necessary to pass upon the question definitely here, we do not do so, so as not to embarrass the decisions of future cases, where it might be of great importance. The meaning of the phrase, that the statute of uses `executes' a use or trust is, simply, in substance, that, under that statute, if A grants or devises lands to B for the use of, or in trust for C, C immediately takes the legal title as well as the beneficial use, and B takes nothing. (2 Perry on Trusts, par. 298.) Now, whatever may be considered as constituting the common law as adopted by section 4468 of the Political Code, still it prevails only `so far as it is not repugnant to or inconsistent with . . . the constitution or laws of this state'; and section 4 of the same code provides as follows: `The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. The code establishes the law of this state respecting the subjects to which it relates:' Title IV of part II of the Civ. Code `establishes the law of this state respecting' uses and trusts, and there is no provision in it similar to that of the English statute of uses, which vests the legal title in thecestui que trust. There was at one time what was then section 848 included in said title IV, which reads as follows: `Every person who, by virtue of any transfer or devise, is entitled to the actual possession of real property, and the receipts of the rents and profits thereof, is to be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as is the beneficial interest'; but that section was expressly repealed on March 20, 1874, as well as the sections following it, which were designated as 849, 850 and 851, and referred to the same subject. Moreover, section 863 in the said title is as follows: `Except as hereinafter otherwise provided, every express trust in real property, valid as such in its creation, vests the whole estate in the trustees, subject only to the execution of the trust. The beneficiaries take noestate or interest in the property, but may enforce the performance of the trust.' It is clear, therefore, that, under our statute of uses, no legal estate vests in the beneficiary. Indeed, the English statute of uses is repugnant to our whole system of conveyances, which is simple in form, and inconsistent with the purposes of our system of registry. (Gorham v. Daniels,23 Vt. 609.) Moreover, the judicial decisions in this state have not, to our knowledge, applied here the English statute of uses — at least, we have not been referred to any decisions here which have done so; on the contrary, the decisions here have always gone upon the theory that the only remedy of the holder of a use or an equitable right in trust was a decree in equity for a conveyance. (Estrada v. Murphy, 19 Cal. 249; Emeric v.Penniman, 26 Cal. 119; O'Connell v. Dougherty, 32 Cal. 458; Greerv. Blanchar, 40 Cal. 197.)

"In Greer v. Blanchar, supra, the court say: `The property in controversy is alleged to have been conveyed in the year 1853 to a trustee, "in trust, for the use and benefit of Harriet M. Risley and S. Risley." By means of that conveyance the equitableestate in the premises was vested in the Risleys as joint tenants'; and this is merely a declaration of the principle which runs through all our decisions: that in such a case the equitable estate, only, vests in the beneficiary; while under the English statute of uses, in such a case, the legal title would have so vested. Again, the statute of uses executed only those trusts which were passive — that is, where there was nothing for the trustee to do, as where there was a conveyance to him, in terms, for the use of another, or where he stood seised to the use of another, or where he was to permit or suffer something — but it did not execute a special or active trust where there was some duty to be performed by the trustee; and a trust to convey was an active trust, and therefore not executed. In 1 Perry on Trusts, sec. 309, the principle is correctly stated as follows: `Therefore, if any agency, duty, or power be imposed on the trustee, as by a limitation to a trustee and his heirs to pay the rents, or to convey the estate, . . . in all these cases, and in other like cases, the operation of the statute is excluded, and the trusts or uses remain mere equitable estates.' In 1 Lewin on Trusts, 210, the rule is also laid down as follows: `Special trusts are not within the purview of the act of Henry VIII; and therefore, if any agency be imposed on a trustee, as by limitation to A and his heirs, upon trust, to pay rents or to convey the estate, . . . in all these cases, as the trust is of a special character, the operation of the statute of uses is effectually excluded.' Moreover, under the English statute of uses only a valid use or trust could be executed; and, as we have seen, in this state a trust to convey is invalid. Therefore, under any view of the law, the trust in the case at bar was not executed.

"The contention, that although the trust to convey be void, it may be held good as a `power in trust to convey,' cannot be maintained. The New York statutes, which are very similar to ours, in enumerating those trusts as to real property which alone are valid, expressly provide for a power in trust to convey; but there is no such provision in our statutes, although we had such a one for a short time. It was section 860, in the same title IV of the Civil Code, which declares what trusts are and what are not valid, and was as follows: `Where an express provision as to real property is created for any purpose not enumerated in the preceding section, such trust vests no estate in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, is valid as a power in trust, subject to the provisions in relation to such powers contained in title V of this part.' It was followed by two other sections on the subject, but they were all three repealed in 1874, and in the same year the entire title V, which was on the subject of `powers,' and which contained over sixty sections on that subject, and to which said section 860 above quoted refers, was also wholly repealed. With respect to the meaning and operation of title IV, which declares what trusts in relation to real property may and what may not be created, there is no distinction between a trust to convey and a power in trust to convey. A mere naked power can be exercised or not, at the will of the holder; but if the exercise of it be imperative, it is atrust. In Sugden on Powers, the author, having said that it is the very nature of a power to be `left to the free will and election of the party to execute it or not, for which reason equity will not say he shall execute it,' proceeds as follows: `But in laying down this broad rule we must be careful to distinguish between mere powers and powers in the nature of trusts. The distinction between a power and a trust is marked and obvious. "Powers," as Lord Chief Justice Wilmot has said, "are never imperative." They leave acts to be done at the will of the party to whom they are given. Trusts are always imperative, and are obligatory upon the conscience of the party intrusted. But sometimes trusts and powers are blended; a man may be intrusted with a trust to be effective by the execution of a power given to him, which is in that case imperative; and if he refuses to execute it, or die without having executed it, equity, on the general rule that the trust is in the land, will carry the trust into execution.' (2 Sugden on Powers, 158.) Upon the same subject in Perry on Trusts, the author, having said that `mere powers are purely discretionary with the donee,' says as follows: `It is different with powers coupled with a trust, or powers which imply a trust. . . . There are mere powers and mere trusts. There are also powers which the party to whom they are given is intrusted with and required to execute. Courts consider this last kind of power to partake so much of the character of a trust to be executed, that they will not allow it to fail by the failure of the donee to execute it, but will execute it in the place of the donee. Lord Hardwicke observed that such powers ought rather to be called trusts than powers. In all cases, these powers or trusts must be construed according to the intention of the parties, to be gathered from the whole instrument.' (1 Perry on Trusts, par. 248.) It is clear, therefore, that a `power in trust to convey' is a trust to convey, within the meaning of said article IV, and that, not being within any category of valid trusts within this article, it is by said article forbidden. Under this view we do not think it necessary to notice any of the other views taken of this subject by either respondents or appellants.

"A good deal has been said by counsel about the difference — or, as appellants contend, the want of much difference — between the consequences flowing from a direct devise, and those flowing from a trust to convey at a distant period to persons of certain classes who might then be in existence. The quantity of that difference is not material to the determination of the question here involved. The question to be determined is, What did the testator do? Did he devise vested estates in remainder? or did he devise the whole fee to the trustees upon trusts to convey after the death of all of his children? If, however, it were important to consider the consequences, it is quite plain that those flowing from one of those acts are very different from those which would flow from the other. If, in the case at bar, the testator had made a direct devise in remainder to the persons of the classes named in the will, those of the latter who were alive at the testator's death would have immediately taken vested estates; the interest of each would have been a property and ownership in the land, with all the rights, powers, and advantages which legally belong to such an interest. If there had been a direct devise to the trustees for the lives of the testator's children, with remainders to the said classes, as there would have been personsin esse of said classes to take were the life estate to end at the present time, such persons would have taken vested remainders; and `such a remainder confers a present fixed right to the future enjoyment, which rises to the dignity of an estate in the land, and invests the remainderman with a portion of the seisin property, or ownership. (20 Am. Eng. Ency. of Law, 839, 840, and cases cited.) `Such a remainder may be devised, assigned, and limited over.' (Id., notes to p. 840, and cases cited.) Such a remainderman has a status which gives him many rights and remedies; he is a necessary party to suits to foreclose, for partition, etc., and may himself maintain suits about the land, as to recover damages for waste, etc. It is needless to pursue further the incidents of such an estate; but the trust to convey contained in the will vests no estate whatever in the persons in the classes named; they have no `portion of the seisin, property, or ownership.' It merely gives to persons of certain named classes, who may happen to be alive at a remote, uncertain time (none of whom need be in existence at the present time), a contingent right to compel the execution of the trust to convey. They are simply in the category of those mentioned in section 863 of the Civil Code, where it declares that `the beneficiaries take no estate or interest in the property, but may enforce the performance of the trust.

"There are other considerations presented by counsel of both sides, bearing upon the question of the validity or invalidity of the trust clause of the will here under discussion, but they are of less consequence than those heretofore noticed, and are mostly covered by the views already expressed; and owing to the great length to which this opinion has already gone, they must be passed without special notice. It may be remarked, generally, that while a man's power to say to whom his land shall go when he dies is a proper and valuable property right, still there is no rule of law or public policy which calls upon a court to be diligent to discover some way to make good a man's forbidden scheme to determine who shall have his property fifty years after his death. It is true that our code permits a suspension of the power of alienation during lives in being, and that where, as in the case at bar, the lives selected are those of very young persons, suspension may be, in the natural course of events, for half a century; but where the attempt to do this has not been lawfully accomplished, there is no reason why a court should condone the unlawfulness of the attempt, for thegeneral policy of the law is against the tying up of property and keeping it for long periods out of the current of alienation and apart from ordinary business purposes. And then the rights of the legal heirs, to whom the law gives property in case of intestacy, are entitled to some consideration. In Estate of Walkerly,108 Cal. 656,³ this court said: `The intestacy of the testator as to the Walkerly Block is the harsh result which must follow this void trust, and the property will descend to his heirs. It is true that such was not the testator's intent, but the testator must do more than merely evince an intention to disinherit before the heirs' right of succession can be cut off. He must make avalid disposition of his property. (Harbergham v. Vincent, 2 Ves. Jr. 204; Hawley v. James, 16 Wend. 150; Haynes v. Sherman,117 N.Y. 433.)' Our conclusion as to the trusts to convey, sought to be created by the fifteenth clause of the will of the decedent, is the same as that reached by the learned judge of the court below; namely, that they are void.

"We also agree with the learned judge of the court below that the invalid trust to convey carries with it the otherwise valid trust for the lives of the testator's children, and that therefore the whole trust failed. Of course, the general rule is well settled, that where there are valid and invalid clauses in a will, the question whether the valid clauses can stand depends upon whether or not the invalid ones are so interwoven with them that they cannot be eliminated without interfering with and changing the main scheme of the testator. InDarling v. Rogers, 22 Wend. 495, Senator Verplanck correctly stated the rule as follows: `When a will is good in part and bad in part, the part otherwise valid is void if it works such a distribution of the estate as, from the whole testament taken together, was evidently never the design of the testator. Otherwise when a good part is so far independent that it would have stood had the testator been aware of the invalidity of the rest.' And in the celebrated Tilden will case (Tilden v. Green,130 N.Y. 50<sup>4</sup>), the court say: `The appellants invoke the aid of the principle, that where several trusts are created by will, which are independent of each other, and each complete in itself, some of which are lawful and others unlawful, and which may be separated from each other, the illegal trust may be cut off and the legal one permitted to stand. This rule is of frequent application in the construction of wills, but it can only be applied in aid and assistance of the manifest intent of the testator, and never where it would lead to a result contrary to the purposes of the will, or work injustice among the beneficiaries, or defeat the testator's scheme for the disposalof his property.' In the case at bar, it is quite clear from the will that the trust as to the income during the lives of the testator's children, and the trust to convey the corpus of the property after their death to certain enumerated classes of persons, were inseparable parts of one entire scheme; and there is no reasonable ground for the supposition that if he had known that the latter trust was void, he would have allowed the former to stand. Upon such a supposition we would have to hold that he would have been willing to merely devise an estate to the trustees during the lives of his children, the income to be divided equally between them, and allow the entire reversion undisposed of by him to go to the heirs at law. But, clearly, that was not his intention. His manifest purpose was, that none of his property should go either to his children, or to any other persons as heirs at law. He intended, through the devise to the trustees and anticipated conveyance by them — for, of course, he must be deemed to have been ignorant of the illegality of the trust to convey, and to have supposed that it would be performed — to dispose of the temporary income to his children during their lives, and ultimately the entire corpus of the property, leaving no part of the fee undisposed of; and his division of the income was evidently based upon the consideration of the persons who would or would not ultimately get the corpus of the property. But the mere creation of an estate in the trustees for the lives of the children, for the benefit of the latter as beneficiaries of the income, leaving the reversion to go to the heirs at law, would have been inconsistent with the most determined purpose of the testator. In such event the three children, being themselves the heirs at law, and having also the income during their lives, and there being no remaindermen to complain of or interfere with any of their acts in the premises, the title would be in a somewhat anomalous condition. It is not necessary to inquire what power of alienation of the fee the children would have under such circumstances if the trustees insisted upon holding on under the income trust, or whether the children, having both the inheritance and, substantially, the beneficial use, could compel a termination of the trust. They could certainly, with the consent of the trustees, have the trust discharged. (Civ. Code, sec. 2282); in which event they would have the entire estate in fee-simple, with present possession of the property. Of course, if the trust to convey were valid, there would be a duty upon the trustees to hold the title and possession until the death of all the children, and then convey it to persons of the named classes; but the trust to convey being void, why should the trustees be required to hold against the present owners of the entire property? And who else would there be with a legal right to complain of the termination of the trust? And thus the children would have, what the testator expressly declared in his will they should not have, present vested estates in fee in the whole property. Moreover, the testator expressly and emphatically declared that no child of his son Charles should have any part of his property, and that Charles himself should have nothing except one third of the income during his life; but, under the construction contended for by appellants, Charles would, under one view, have one third of the corpus of the property, and might, upon the happening of certain events, have it all, and, under another view, his children would take contrary to the will of the testator; and as the income given to Charles would be very large, it may well be supposed that it was given him so that he might be spurred to save something for his children, and that the testator would not have given him so much if he had known that his children might inherit. For these reasons, as well as for others that could easily be suggested, we hold that the invalidity of the trust to convey destroys the whole scheme of the will, and carries with it the trust for the lives of the children."

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

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

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

A layman would not hesitate a moment in the declaration that Fair intended by this language that the trustees should pass title to the property by deed. It is only the astute lawyer who can see any other intention. While Fair's intention as to the creation of a trust in the trustees to convey stands out so that all may see, we find nothing in the instrument, anywhere, showing a contrary intention. Indeed, when the pleadings in this case were prepared and filed by the trustees, we find a verified allegation in those pleadings to the effect that these trustees were the owners in fee-simple absolute of this property, in trust, etc.

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

Another view of this contention, closely allied to the one just considered, is found in the claim that the will creates an estate for life in the trustees, with a direct devise to Fair's kindred. And this claim is based upon the concession (for the purposes of the case, only) that Fair intended to create a trust to convey, but the means or mode provided by him for vesting the estate being illegal, therefore, in order to carry out his general intent to vest the property in certain of his kindred, a legal means and mode will be substituted by the court. In other words, the contention is, that, notwithstanding Fair's intention to create a trust to transfer and convey his property may appear upon the face of the will as plaint as a blazing fire in the darkness of night; notwithstanding Fair may have said in his will, "I hereby intend in and by this will to create a trust in the trustees to transfer and convey my property to my beneficiaries," — notwithstanding all this, the court will give no concern to that expressed intention, the trust being void; but in order that these particular beneficiraries may secure the property, will hold that it passes to them by direct devise. Courts will look askance at such a proposition, for it is startling in the extreme. In the first place, we do not find any general or ultimate intent upon the face of the document indicating that these beneficiaries shall take this property by hook or by crook. The only intent we find is an intent that they shall take it in a certain specified way; namely, by way of a trust to transfer and convey. Can counsel or court say that, from the face of this instrument, there is a plain intent that these beneficiaries shall have this property, regardless of the way provided by the testator for them to take it, — indeed, regardless of everything? Upon the contrary, it seems that they were to get it only by way of the route pointed out in the will. If that route be blotted out, how may they get it at all? Who can say from the words of the will but that the testator intended that they should get it by way of the trust, or not get it at all? This court is not wise enough to say that Fair did not know he was creating a trust to transfer and convey when he made his will. In Estate of Young, 123 Cal. 343, it is said: "One of these rules firmly established and never departed from, nor even criticised, is, that the expressed intent will not be varied under the guise of correction because the testator misapprehended its legal effect. The testator is presumed to know the law. If the legal effect of his expressed intent is intestacy, it will be presumed that he designed that result. The inquiry will not go to the secret workings of the mind of the testator. It is not, What did he mean? but it is, What do his words mean?"

Let it be conceded that a general intent may be found in this will, indicating that these beneficiaries should have the property, still the only mode provided by the testator for them to get it is illegal, prohibited by the law, and this court has no power to provide a legal mode. In attempting to vest an estate, if the only mode prescribed for the purpose by the testator is illegal, courts cannot close their eyes to that mode, and substitute in lieu thereof a legal mode. A valid power in trust, coupled with a statute of uses, might do it; but without the power and the use, it cannot be done. If the mode provided by the testator was legal, but defective in substantials, the court could not create a new mode. Then, when the mode created is illegal, void, amounts to nothing, how may the court create a new and legal mode? The law says to Senator Fair: "You shall not create a trust to convey your property." Fair says: "I will create a trust to convey my property." The court says: "The trust you created to convey your property is void, because prohibited by law; but your wishes as to the disposition of your property will be carried out, through the medium of a direct devise, exactly the same as though the trust you created was entirely valid; and the words you used to create the void trust will be held to create a valid direct devise." This construction of the instrument renders the law forbidding trusts of this character absolutely nugatory, and demands the exercise of an accommodating spirit upon the part of the court, which the law forbids. Under the law of this state, a devise to A in fee, in trust, to convey to B, cannot be the equivalent, by any possible rules of construction, of a direct devise to B. That is the substance of this contention; but to so declare would shock the statute forbidding the creation of trusts of the character here involved. In this illustration, with equal propriety it may be said that there is a general intent that B should have the property; yet, by no judicial construction could he ever get it. It is not the right of the court, by construction, or in any other way, to evade a rule of law in order that some particular result may be reached. The court may only declare the law as it finds it, whatever the result of that declaration may be.

Some importance is attached by appellants to section 864 of the Civil Code. That section provides: "Notwithstanding anything contained in the last section, the author of a trust may, in its creation, prescribe to whom the real property to which the trust relates shall belong in the event of the failure or termination of the trust, and may transfer or devise such property subject to the execution of the trust." The facts of this case do not call for an analysis in detail of this section of the code. In the creation of the trust here involved, the trustor has made no attempt to prescribe to whom the property shall belong in the event of the failure or termination of the trust. He has not said, as he may have said under this section, "If the trust I have hereby created in the trustees to transfer and convey my property is not a valid trust, and for that reason shall fail, then I direct that this property shall pass," etc. A provision of that character in this will would bring the case directly within the section. But the testator wholly fails to insert the provision. He makes no attempt to do it. Again, the section cannot be construed to mean that the trust provided for by the instrument being void, the language creating it will be treated and deemed the prescription mentioned in the section, and therefore the property will pass exactly as it would have done if the trust had been valid. Certainly, this construction of the section was never contemplated by the law-makers, for it would be holding that every void trust to convey could be transformed into a valid prescription.

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

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

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

For the foregoing reasons the decree is affirmed.

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

¹ 49 Am. St. Rep. 97, and note.

² 72 Am. Dec. 455.

³ 49 Am. St. Rep. 97, and note.

⁴ 27 Am. St. Rep. 487, and note.