f Use's and Trusts; of 1 Case . John Currey UNIVERSITY OF CALIFORNIA ROBERT ERNEST COWAN Of Uses and Trusts REVIEW OF The Fair Will Case ( J32 California Rep., 523-580 ) THE STAR PRESS JAMES H. BARRY T ' 02. OF USES AND TRUSTS. Review of the Decision of the Supreme Court, in the Case of the Will of James G. Fair, Deceased. ( BY JOHN CURREY. Trusts to Uses, or Uses and Trusts, a system of trans- fers of lands to trustees in trust, to and for the use of a beneficiary, denominated a cestui que use, or cestui que trust, was of Civil Law origin, introduced into England at an early period of its history. There were two kinds of trusts, one, called a Special or Active Trust, by which the author of it imposed on the trustee the performance of active duties in the management and use of the lands transferred to him for the use of the beneficiary, until the termination of the trust. The other kind was called a Formal or Passive Trust, by which the trustee was made the naked repository of the title to the estate transferred to him. The beneficiary in the latter case was entitled to the possession and all the rents, issues, and income thereof. At law, the title vested in the trustee by the transfer was of the whole estate, in fee simple, with all the incidents of absolute ownership. He could mortgage or sell the property of the estate as his own. It could be subjected to the payment of his debts. He could dispose of it by last will and testament. It would descend to his heirs if he died intestate. If he died intestate with- out heirs, it would escheat to the crown. 1 Perry on Trusts, Sec. 321. Thus, at law, the title in the trustee was absolute. The beneficiary had neither jus in re nor jus in rem in the estate transferred in trust, though so transferred to and for his use and benefit. But the Courts of Equity then established in England regarded the beneficial in- terest in the estate as of substantial value, and in the exercise of their equitable jurisdiction held such interest to be an equitable estate. Thus it was that, at law, the legal estate was in the trustee, and, in equity, the benefi- cial estate was in him for whose use' and benefit the author of the trust created it. The equitable estate, it appears, was the creation and creature of the exercise of the equitable jurisdiction of Courts of Equity. This estate drew to it the legal title vested in the trustee in the case of a Passive Trust, immediately upon the crea- tion of such trust, and, in the case of an Active Trust, immediately upon the performance and fulfillment by the trustee of all the duties of a purely trust nature. The Act of Parliament passed in the 27th year of Henry VIII, known as the "Statute of Uses," operated to transfer all legal titles vested in trustees of Passive Trust estates, existing at the time that Act went into I 7 effect, to the beneficiaries, and also so operated to trans- fer all such legal titles afterwards created and vested in trustees of Passive Trust estates, as soon as created. This Act of Parliament did not change the law as to Active Trusts. The legal title remained in the trustee, as before the passage of that Act, until conveyed to a beneficiary or designated remainderman. 1 Lewin on Trusts, p. 210. 1 Perry on Trusts, Sec. 309. The law of uses and trusts, as to the nature and char- acter of the title vested in the trustee of an Active Trust estate, under the English law, was the law of the State of New York on the subject down to the year 1830, when the 52 Legislature of that State, by an Act entitled "Of Uses 2* and Trusts," abolished all laws of the State before then H in force relating to uses and trusts, except as provided in ^ that Act. That Act made a radical change as to the I nature, quality, and duration, of the title and estate vested in the trustee. Under the English law, the whole title was vested in the trustee, without qualification or limitation, and remained in him until he conveyed it. Under the New York law before the Act of 1830, the estate of the beneficiary in the property granted or de- vised in trust was deemed an equitable estate, as contra- distinguished from a legal estate. That Act made that which was an equitable estate before its passage, a legal estate. 306568 The Civil Code Act of the State of California was adopted in 1873, and, like the New York Act, made all such equitable estates, legal estates. Under our Code law, the estate of a remainderman or an heir-at-law, in the residuum of an estate so granted or devised in trust, is a legal estate, vested at the time the trust is created. If created by deed of conveyance, it is vested when the deed is delivered and accepted by the grantee. If by will, it is vested when the testator dies. On this point, the cases of Livingston, 34 N. Y., 557, 567; of Watkins vs. Vroornan & Reynolds, 51 Hun., 175, and same case on appeal, 123 N. Y., 211; Gilman vs. Redington, 24 Id., 9, 15, 16 ; Embury vs. Sheldon, 68 Id., 234-5 ; Stevenson vs. Lesley, 70 Id., 515-18, and Campbell vs. Stokes, 142 Id., 23, and many others, may be consulted, showing that the estate of a residuary devisee or an heir-at-law in being, is a legal estate, and also showing when it vests in in- terest. The foregoing brief history of the English common L-ixv doctrine relating to uses and trusts, and in respect to the difference between that law and the law of uses and trusts adopted by the State of New York in 1830, and by the Legislature of this State in 1873 and 1874, as to the nature, quality, and duration of an estate granted or devised in trust, is deemed essential to a ready under- standing of the position of our Supreme Court in its decision of the questions involved in the consideration and construction of the provisions of the will of James G. Fair. The decision and judgment "In the Matter of the tixtate of JaincH G. Fair, Deceased," is contained in Volume 132 of the reports of the decisions of our Supreme Court. The opinion of four of the seven .J ustices of the Court is herein referred to as the opinion of the Court. The Chief Justice and Justices Harrison and Temple dissented. The decision, and the controlling opinion leading up to it, is in relation to the law of uses and trusts as it existed in England from an early period, and in New York down to the year 1830, and as it has existed in that State since that year, and as it has existed in this State for more than twenty-five years. The decision is of more than ordinary interest to the legal profession, and especially to persons who have, or may have, estates to dispose of by last will and testament. By his will, James G. Pair, a resident of the State of < 'alifornia, devised all his real property to trustees, to have and to hold the same in trust for and during the lives of his three children, for their use and benefit. This trust was followed by a direction that his trustees should transfer and convey his estate remaining to ce.rtain of his grandchildren, as a class, and to his brothers and sisters and children of deceased brothers and sisters, as another class, in proportions specified in his will. This will was made and executed in due form in September, 1894, after which, in December of that year, the testator died, leaving him surviving, his three children, a grand- child, and brothers and sisters, and children of deceased 6 brothers and sisters. The will was contested by the son of the testator, as appears in the action or proceeding instituted by him for the purpose of breaking down the will. The decision of the trial Court was in favor of the contesting plaintiff. The main ground of contest was that the direction or instruction contained in the will, to transfer and convey the property of the estate upon the termination of the life trust, as in the words of direction provided, was not one of the enumerated pur- poses of trust authorized by our Civil Code of uses and trusts. The contestant's object was to break down the trust created for the benefit of the children, though ad- mitted to be valid as a trust in itself, and to that end the alleged unauthorized direction was made subservient. To the attainment of this ultima thule of the contesting plaintiff, it was deemed essential on his part to establish to the satisfaction of the Court the following three prop- ositions : (1). That by the devise in trust, the testator in- tended to devise to his trustees the whole of said estate in fee simple, and that he did so devise to them the whole estate in trust, for two purposes, the one for the use and benefit of the children so long as they might all live, and the other in trust to convey the estate remaining after the death of all the children, to the classes of persons designated in the will, as residuary devisees, by a deed or deeds of conveyance to be executed to them by the trustees. (2). That said direction or instruction to transfer and convey the remaining property of the estate to the classes named was unauthorized, and therefore nugatory and void and impossible of execution, and, being nuga- tory and void, the testator's intention to give and devise such remaining estate to his grandchildren and others was defeated, and therefore he must be deemed held and considered as never having intended to give and devise such property to said classes of persons. (3). That the subjects of the two foregoing proposi- tions are so interwoven and inseparably connected as to constitute a scheme, to the effect that the former, valid in itself, and the latter, declared to be invalid and void, must necessarily fail and fall together. FIRST. i With respect to the first of the foregoing propositions, the Court determines and decides that the estate vested in the trustees by the devise to them in trust for the use and benefit of the children was, in its nature, quality, and duration, an estate in fee simple, to continue and remain in them in trust until conveyed by them by deed, at some future time, to those to whom the testator in- tended it should eventually belong in full property. This position of the Court is, in effect, a denial that the estate vested in the trustees was only an estate for the lives of the children, or, in other words, a life estate. In approaching the discussion of the question as 8 to the effect of the devise in trust, the Court, per Garoutte, J., says: "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 con- vey the estate to certain of Fair's kindred? Or, upon the contrary, was it to be construed as a direct devise to those kindred? * * * Does such a provision create a trust in the trustees to transfer and convey the estate?" ( 132 CaL, 543. ) In the construction of the habendum clause in the will, the Court, at page 545, per the same Justice, says : "Stress is laid by the appellants upon the words, ' to have and to hold in trust, during the lives,' etc., 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 convey- ance 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." The Court then goes on to say that, "It seems, under these circum- stances, that if a complete and perfect fee ever could vest in a person, it has vested in these trustees." And, in conclusion, the Court says: "It follows, from these views, that the contention of the appel- lants, 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 9 to sell and transfer the property during that period, cannot be maintained." At page 530, the Court, per McFarland, J., in speaking es]>ecially as to whether the testator intended by the words of his direction to transfer and convey, to devise the remainder to his grandchildren and brothers and sis- ters, says: "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 per- sons of the named classes, but intended to devise the whole estate in 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 conveyan- ces." At page 549, the language of the Court is equally strong to the same point. The foregoing passages from the opinion show the atti- tude of the Court as to the nature, quality, and duration, of the estate claimed to be vested in the trustees, based upon and predicated of a fallacy to the effect that by the devise there was created a trust of the remainder of the estate in the trustees a thing impossible under our Code where there is a devise of such remainder to persons or classes of persons in fee simple absolute. The Court says a complete and perfect fee was vested in the trustees which is not limited to the lives of Fair's 10 children ; that such complete and perfect fee to the whole estate must remain in them until conveyed. All this was accomplished, the Court holds, by the creation of the primary trust, valid as a trust in itself. This position is as conclusive of the whole estate as if there was no quali- fication or limitation imposed thereon by law either by positive law or judicial construction. Under our Code system of uses and trusts in this State, no trust in lands can be created embracing the remainder devised in fee simple absolute, nor of an estate, granted or devised in trust to and for the use of designated bene- ficiaries, of longer duration than for lives of persons in being; hence the declaration that it could not be main- tained that the trustees took only an estate for the lives of Pair's children, or, in other words, an estate for life, is upon the face of our Code statutes untenable, because untrue, for when in such case the lives of all the benefi- ciaries of the life estate are ended, the trust is ended, and the estate before then vested in the trustees, is also ended. This is so declared in Section 871 of the Civil Code, in these words : "When the purpose for which an express trust was created, ceases, the estate of the trustees also ceases." A trust and a trust estate cannot exist without a bene- ficiary. If all the beneficiaries are dead, the property of the precedent and expired trust estate does not remain in the defunct trustees. Their office, depending essentially 11 upon the existence of a beneficiary and a trust estate, becomes vacant at the moment when there is no longer in existence a beneficiary and a trust estate. The title to the estate in such case is not left in abeyance by the termination of the trust. If already devised to a remain- derman, it vests at once in him in possession. If not already devised, it vests in possession in the heirs at law of the author of the trust. In either case, the title is a legal title, as distinguished from an equitable title or estate. Section 866 of our Civil Code is as follows : "Where an express trust is created in relation to real property, every estate not embraced in the trust, and not otherwise disposed of, is left in the author of the trust or his successors." It plainly appears that the Court's position is, that by the devise to the trustees in trust, Fair vested in them the whole estate in fee for a two-fold purpose the one to the use and benefit of his children, for and during their lives, and the other in trust to have and hold the estate to the use and benefit of a new set or class of beneficiaries, namely, the residuary devisees, by the testator designated by the words of his instruc- tion or fMrrrtinn iwrt to transfer and convey the property to them. Such is, as the Court holds, the double purpose of the primary trust, which is to continue until the conveyance shall be made. If this were so, what would be the consequence? The trus- tees, being seized in fee of the whole estate in remainder 12 for the purposes of the additional trust, to convey it at a future time to the parties entitled thereto, must so con- vey it in performance of their duty. The making of such conveyance being- a duty imposed by law, as the Court admits, the performance of such duty cannot be deemed to be unauthorized and therefore illegal and void. But the Court holds thait the trustees will not be competent to so convey, because the power to do so is not one of the enumerated purposes of a trust, and therefore is illegal. It is thus seen that, on the one hand, the trustees are commanded to convey, and, on the other, forbidden to do so. The consequence of these conflicting conditions is to leave the remaining estate vested in the trustees in fee in trust to and for the use of the beneficiaris of the additional trust estate, their heirs and successors for- ever. In this condition of conflicting demands upon the trustees, it may be asked : What are you going to do about it? It may be suggested here, that the Court's construc- tion, carried to its logical consequence, is a creation of a perpetuity, forbidden by law. This must be the case, if the estate is vested in the trustees in fee for a period extending beyond the lives of persons in being. No limitation as to the quantity of the estate devised is conceded by the Court, nor is it admitted that the term of the trust is limited, except by the time when the trustees shall convey the remainder to the residuary devisees, for it is said, at page 545 of the report of the decision, that the trustees were vested with the fee to the 13 whole estate, and that this title in fee is not limited by the lives of Fair's children, and, further, that the words of the habendum clause were made to fix the estate of the trustees, and to fix the day when the trustees should make the conveyance to the beneficiaries, that is, to the remaindermen. The same idea is boldly advanced at page 530, to the effect that the. whole estate was devised to the trustees for the purpose of enabling them to con- vey the remainder thereof at a future time, when all the children would be dead and gone, to the grandchildren and others named. To this conclusion the Court adheres with steady firmness, necessitating the ignoring of the words of the limitation contained in Section 863 of our Civil Code, which section is in these words : "Except as hereinafter otherwise provided, every express trust in relation to 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 no estate or interest in the property, but may enforce the performance of the trust." The words, "'subject only to the execution of the tru&t" are clearly words of limitation, that is to say, a limita- tion of the quantum of estate devised in trust to the trustees, for the purposes of the trust, which is so much of the estate as may be necessary and adequate to the execution of the trust no more nor less. on Tnixlx, Sec. 320. 14 Morffew vs. R. R. Co., 107 Cal., 595. Benellack vs. Richards, 116 Cal., 410. Moore vs. Appleby, 36 Hun., 368, and same case in 108 N. Y., 237, affirmed on appeal. Having first determined by construction, that the whole estate was vested in fee in the trustees in trust, unaffected by any qualification or limitation, first, to and for the use and benefit of the testator's children, and after them, by the continued trust to convey the remain- der to another class of beneficiaries, our Court utilizes so much of our Code law as may be deemed sufficient to defeat the implied power of the trustees, for the perform- ance of the final act imposed on them by law, as an obli- gation. As our Civil Code is the law of this State, it is to be obeyed and followed in all cases of uses and trusts cre- ated under and by its authority. If obeyed and followed, as it must be, it results that no express trust can be created to carry into effect a devise of the remainder of the estate, granted or devised in trust, under and in con- formity with our law. In this State, there is no statute as in the State of New York on the subject of powers in trust. That statute cannot be called into service as an auxiliary to the creation of an active trust to convey the remainder of an express trust estate, as was done in the case of Townsend vs. Frommer, 125 N. Y., 446. The decision here referred to is said by our Court to be " almost exactly like the case at bar." An attentive ex- 15 amination of the deed of Mrs. Curtis, which is considered and passed upon in that case, shows that its facts and circumstances were widely different from those of the " case at bar." Mrs. Curtis, as it appears, granted by deed her real property to her trustee, upon a valid trust to and for her own sole and separate use and benefit for the term of her natural life. This trast was followed by a direction to her trustee to convey the corpus of the estate to certain of her descendants who might be living at the time of her death. The opinion of the Court in that case shows that the first and controlling question determined was, whether, upon the face of her deed, it appeared that she intended to vest a present interest in the proposed objects of her bounty, or whether she intended to retain in herself the whole estate granted in trust, for and during her life, subject only to the execution of the life trust, postponing the vesting of the remaining estate in those to whom she intended it should be conveyed at the termination of the life trust, if then living. The Court held that she in- tended to retain in herself, as she might lawfully do, the whole estate during her life, subject only to the execu- tion of the trust, and, as a consequence, that the persons to whom she intended her estate to ultimately belong, took no interest therein during the term of the life estate. This decision was a determination of the fundamental question involved, and was conclusive of every other question in the case dependent thereon. It is plain that all questions not directly involved in this fundamental 16 proposition were irrelevant to the issues joined between the parties. There is nothing apparent upon the face of the Fair will showing that the testator intended anything other than that the title to the corpus of his real property should, immediately upon his death, vest in fee in certain of his grandchildren as a class, and his brothers and sisters and the children of deceased brothers and sisters as another class, then in being, in the proportions by him specified, as tenants in common, subject only to the exe- cution of the trust. It is submitted that the case of Townsend vs. Frommer is in no just sense "like the case at bar" in any essential particular pertaining to the will in question, notwith- standing anything advanced by the Court to the con- trary. The case here referred to, though inapplicable to any question involved "in the case at bar," has never been accepted by the New York Courts, as sound law. It was for a while an embarrassing decision, which, in the course of time, has been substantially overruled and dis- regarded as "peculiar" and questionable. In respect to it, see Campbell vs. Stokes, 142 N. Y., and the observa- tions of the text writer, Chaplin in his Treatise on Ex- press Trusts and Powers, Sec. 614. Our Civil Code system of uses and trusts, limiting all estate granted or devised in trust to uses therein specified, is very different from the English com- mon law system of uses and trusts, as to the 17 nature and duration of trust estates. Our Code statutes, read in pari materia, show how express trusts in relation to real property may be created. Sections 2221 and 2222 of our Civil Code provide for the creation of express trusts in relation to lands. Section 847 limits the creation of such trusts to the purposes specified in the Title of which it is a section. Section 857 enumerates the purposes for which express trusts may be created. Section 863 declares the effect of such trusts, valid as such in their creation, and limits the quantum of estate granted or devised to so much thereof as ma3 r be necessary and adequate to the execution of the- trust no more nor less and this section excepts from the operation of a grant or devise in trust all the prop- erty of the estate other than the quantum thereof that may be necessary for the execution of the trust; and Section 864 declares that, "Notwithstanding anything contained in the last section, the author of the trust may, in its creation, prescribe to whom the real prop- erty 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 execu- tion of the trust;" and Section 865 declares the effect of such transfer or devise to be to vest in the grantee or devisee a legal estate in the property, subject to the ex- ecution of the trust. Here, it is in effect declared that the author of the trust is competent to transfer or devise all the property to which the trust relates, subject only to the execution 18 of the trust, which he could not do if the whole estate was vested in the trustees in fee, in trust to convey the remainder thereof at a future day to persons or classes of persons named by the author of the trust in his will. These Code provisions, read and construed together as constituting a system of uses and trusts, are easily understood. The New York statutes, in all essential particulars the same as our own on the subject, have been interpreted and construed by the Courts of that State, in none of which was it ever pretended that trus- tees take an estate in fee in the property thereof, in trust to the use of beneficiaries, except only to the extent lim- ited, namely, only to an extent sufficient and adequate to the execution of the purposes of the trust. In the case of Oilman vs. Redington, 24 N. Y., 15-16, the Court, per Comstock, C. J., after referring to the statutes relating to powers in trust, said : "For the present purpose, it is only material to observe that the estate is given entirely, and not for life, to the three children of the testator. The limi- tation, it is true, is of a future estate, to take effect in possession at the end of the trust term. Until then, the title is wholly vested in the trustees: I mean wholly during the term as a temporary fee, and it is vested in interest, at the death of the testa- tor, wholly in the three children. According to the statute (1 R. S., p. 723, Sec. 13), a future estate is vested where there is a person in being who would have an immediate right of possession on the ceas- ing of the intermediate or precedent estate. The 19 three children were in being at the death of the tes- tator, and by the very terms of the devise would be entitled to the possession and enjoyment of the estate at the expiration of the trust. It was, there- fore, a present, vested devise of a future estate. And, as I have said, the devise is in fee." The statute here referred to, is the same as Section 694 of our Civil Code. Here it may be observed, that the devise referred to, relates, not only to the nature and duration of the estate vested in the trustees, but also to the estate vested at the same time in the remaindermen, and when it becomes a vested devise or remainder. The case of Embury vs. Sheldon, 68 N. Y., 234, 235, is in exact accord with Gilman vs. Redington. In Embury vs. Sheldon, the Court held that by Section 60 of the New York Act (the same as Section 863 of our Code), the quantum of estate acquired by the trustees was "merely for the purposes of the trust, and nothing be- yond that" ; and, further, the Court said : "It is true that during the existence of the trust the trustees were given full power to administer the estate, and for that purpose were vested with the entire control over the estate; but such a tem- porary interest does not interfere with or prevent the vesting of the remainder upon the termination of the trust estate, subject to the right of the trus- tees during the intermediate period. Nor does the declaration in Section 60, to the effect that the 20 cestui quc trust takes no interest, conflict with the right to the remainder, or prevent the vesting of the same. It only applies to the trust estate, and the two estates are entirely consistent, and may exist at the same time." Stevenson vs. Lesley, 70 N. Y., 515-517, is a strong case, in entire accord with the foregoing decisions in respect to the nature of the estate vested in the remain- dermen, and when it vests in interest. See, also : Goebel vs. Wolf, 113 N. Y., 412, et seq. As to the nature of the estate vested in the trustees in trust, and the quantum thereof, our Supreme Court, in the case of Morffew vs. R. R. Co., 107 Cal., 595, held the same to be, of so much thereof as necessary for the exe- cution of the trust no more nor less. And the same doctrine was declared by the Supreme Court of the United States, per Miller, J., in the case of Young vs. Bradley, 101 U. S., in an elaborate opinion fortified by many authorities. See, also, Benellack vs. Richards, 116 Cal., 410. The remainder is no part of a trust estate, after the termination of the precedent trust estate. If there was a devise of the residue at the time of the creation of the trust, as provided in Section 864, no trust of such re- mainder could be deemed to be created thereby, for the plain and obvious reason that our Code does not con- template a devise of the fee for such a purpose, but for- 21 bids it, as held by our Court, and for the further reason, that an express trust cannot be created for an illegal or unauthorized purpose, and for the still further reason that the grant of common law powers, of the nature of powers in trust, does not vest in the donee of the power any estate or interest in the property directed to be con- veyed. See N. Y. R. 8. on Uses and Trusts, Sections 58 and 59. If the donee of a power in trust to convey is to be deemed the trustee of an active trust, as held in Town- tend vs. Frommer, supra, such trust is, in its nature, sui generis,, for, in every express trust created under our Code, there must exist two essential factors, namely, a property-subject and a beneficiary. If either of these be absent, the trust fails for want of an indispensable constituent of its existence. Powers, denominated common law powers, are inci- dents of property rights, and are essentially inherent and necessary to the exercise of the right which everyone has to convey his property while living, or to dispose of it by last will and testament. Under our law, the testa- tor's right and power to dispose of the remainder of his estate, to take effect as a vested remainder at the time of the creation of the trust estate is not a question de- pending upon construction. Our statutes are conclusive of this question. The decision of the Court, holding that by the devise in trust, to trustees, Fair vested in them the whole estate in fee, is in effect a denial of his right 22 to dispose of the property by deed or will, as authorized by Sections 863 and 864 of the Code. A devise of the remainder of the trust estate is held by the New York Courts, as already seen, to be a vested devise or remainder, unless it appears affirmatively by unequivocal language of the testator, to have been in- tended otherwise by him. In Moore vs. Lyons, 25 Wend., 144, the Chancellor said: "A remainder is not to be considered contingent* in any case where it may be con- sidered as vested, consistently with the intention of the testator." And the same rule is laid down in Embury vs. Shel- don, as follows : "It is a well settled principle, that the law favors the vesting of estates, and unless the intention be expressed unequivocally to the contrary, it will not be imputed to the contrary. And the remainder is not to be considered contingent where it may be vested, consistently with the intention of the testa- tor." The foundation of the rule is given in Oilman vs. Red- ington, supra. The devise of Fair to his grandchildren and brothers and sisters, as classes, is clearly within the rule. For example, if all the testator's children had died the next day after his death, the residuary devisees, namely, the grandchildren and brothers and sisters and children of deceased brothers and sisters living, would have at once 23 been entitled to the possession and enjoyment of the estate in fee simple absolute, as provided by the statutes of New York, and also by our own, in words the same. (N. Y. R. 8., p. 723, Section 13; Civil Code of California, Section 694.) It should be borne in mind that a devise of real prop- erty to remaindermen as such, under Section 864, is purely testamentary, and not in any sense dependent upon the trust estate vested in the trustees to and for the use of beneficiaries, who are essential constituents of an express trust, created under our law of uses and trusts. If a devise of the remainder is made to a beneficiary of a trust estate who survives its termination, as is some- times the case, he does not take under the devise as a beneficiary of the expired trust estate, but as a testi- mentary devisee. A direct devise in fee simple absolute, is not and cannot be the creation of a trust. In such case, who is the trustee, in whom is vested the estate in trust? And what property or estate is vested in him? The decision in Campbell vs. Stokes, 142 N. Y., 23, deals with a case in principle like that of Senator Fair. In that case, the direction was to the trustees to parti- tion and divide the remainder of the estate into shares, and to transfer, convey and deliver them to those en- titled thereto. In respect to the question considered, Andrews, J., said : 24 "The whole scope of the will negatives the idea that their rights were dependent in any way on the action of the trustees, or that the vesting of their interests awaited the exercise by the trustees of the power to transfer, convey and deliver the shares to the issue so entitled." And further on he said: "There is no room for the application of the tech- nical rule sometimes resorted to, to ascertain whether an interest given by a will is vested or con- tingent, that when the gift is only found in the di- rection to divide at a future day this circumstance may be considered to have weight. It is a rule ascertaining the real intention of the testator, and not for defeating it. Those entitled under the will take, not because the power of division was given to the trustees, but independently thereof." Applying the rule there laid down, the residuary devi- sees designated by Fair in his words of direction to transfer and convey to them, did not take because the power to convey was, in terms, given to the trustees, but independently of it. The New York Act of uses and trusts has been in force more than seventy years, and the decisions of the courts of that State, in giving effect by interpretation and con- struction to its provisions, are many; and many deeds and wills, by which express trusts have been created, in the first place set forth the terms of the trust, and in all such cases, there is a time fixed for its termination, gen- erally on the happening of a specified event. In many of such cases, the trust is followed by a direction to the 25 trustees to convey the remainder to the persons by the testator named. It may be said with entire safety, that there is not to be found a reported decision in that State, which holds that a direction so made vitiated the pre- cedent trust estate, or that such direction was not a sufficient expression of the testator's intention as to the ultimate disposition and distribution of his property. In the case entitled, "In the Matter of Livingston," 34 N. Y., 558-559 and 567, the trust w r as created by a deed executed and delivered by William Winter to a trustee, to and for the use of the grantor, for and during his life, followed by a direction that, upon his death, the trustee should assign, transfer and convey the remaining estate to certain persons, by the grantor named. The Court held that the remaindermen took a vested estate in the remainder, when the deed was delivered to the trustee, rendering a deed of conveyance from the trustee useless. The deed directing the assignment and conveyance was the remaindermen's title deed. In the case of Watkins vs. Vrooman and Reynolds, 51 Hun., 175, in the New York Supreme Court, it appears that William Miller devised his real property to a trus- tee upon a valid trust, to and for the use and benefit of his daughter, Mrs. Vrooman, for and during her life, fol- lowed by a direction to his trustee that upon her death he should convey and deliver the property to her heirs, who would be living at the time of her death. The ques- tion before the Court was, whether a deed of conveyance from the trustee to said heirs was necessarv in order 26 to vest in them the title to the estate? The Court held it unnecessary on the ground that the title was arleady vested in said heirs. The heirs named derived their title Z>y the devise of their grandfather Miller, ~by and through the words of direction to convey and deliver the estate to them, upon the death of their mother. The will of William Miller, executed as by the law required, was the title deed of his grandchildren, the heirs of Mrs. Vrooman, living at the time of her death. This case was taken to the Court of Appeals, and there the decision of the Supreme Court was affirmed (123 N. Y., 211). The Court, per Peckham, J., considered at length Section 67 of the statutes of that State, on uses and trusts (which in all respects is the same as Section 871 of our Civil Code), holding that this section rendered it unnecessary for the trustees to execute a deed of conveyance. "So far," said the Court, "as the vesting of the title in the heirs of Mrs. Vrooman living at the time of her death, were concerned, no further duties of an active trust na- ture were contemplated or required" In all cases where the residuum of a trust estate is vested in the remaindermen, by grant or devise, no deed of conveyance for such purpose is contemplated or re- quired from the trustee, for the simple reason that he has no estate to convey. SECOND. The Court having determined that, by the devise to the trustees, they became vested in fee of the whole estate, 27 upon a valid trust to and for the use and benefit of the children, and that by the same devise there was vested in the trustees in fee whatever would remain of the estate after the termination of the life term, in trust to convey such remaining estate to the grandchildren and others, enters upon the consideration of the testator's di- rection to transfer and convey such remainder to the objects of his bounty, and denounces it as an unauthor- ized and unwarranted attempt on his part to create an illegal and forbidden trust; forgetting, it would seem, that according to the Court's determination, he had al- ready created a trust in the trustees to convey such remainder to the grandchildren and others, after the extinguishment of the precedent trust estate. Surely, if the title to the remainder was vested in the trustees in fee, as a valid trust to convey, the direction to that end was inconsequential in so far as it could be deemed a direction to convey by deed or deeds, for the direction to do what the law required to be done could not possibly do any harm ; but this direction was not inconsequential as an expression of the testator's intention as to the dis- position of the remaining property. The Court admits, as it is obliged to admit, that by his words of direction the testator intended to give his property remaining af- ter the expiration of the precedent trust estate to his grandchildren and others named. The effort on the part of the Court, to limit and con- fine the direction to a conveyance by deed, is extremely 28 narrow, to which the aphorism, Qui haeret in litera, hae- ret in cortice, aptly applies, yet the Court holds on with persistent tenacity to its restricted interpretation of the words of direction, as impossible of any other meaning than a conveyance by deed; thus denying that the in- tention of the testator making disposition of his prop- erty can be carried into effect in any way other than through the medium of a conveyance by deed. Is it not remarkable that in its consideration and dis- cussion of the questions involved in the foregoing first and second propositions, no heed was given to the limita- tions contained in Section 863, nor to the declaration of Section 871? The mode and way prescribed by the testator for transmitting his property to his grandchildren and oth- ers is held by the Court to have been, in the estimation of the testator, of greater importance than was the pur- pose intended to be accomplished thereby. To him is ascribed a sentiment extremely puerile. He is represent- ed as cherishing a bauble dearer to him than the welfare of his nearest and next of kin. Assuming that he must have known, as the Court presumes he did, that a trans- fer and conveyance by deed, was not a purpose for which a trust could be created, and which for that reason must fail, the Court concludes that he did not intend that his declared intention should have effect, but on the con- trary, that he did intend to devise the whole fee to his trustees upon trusts to convey the remainder to the des- ignated remaindermen, so that they would at a future 29 time receive new estates by conveyances to be made by the trustees. The conclusion and determination that the testator did not intend to devise the remainder to his grandchil- dren and others, seems to be based on two grounds: First, that the testator had already devised in fee the whole estate to the trustees in trust, to convey the re- mainder to the classes of persons by him named as his residuary devisees, and, second, that his direction to so convey being unauthorized and void, it must be Imputed to him, that lie did not intend to devise the remainder to such nominal residuary devisees. This idea is advanced throughout the leading opinion of the Court. If the tes- tator did not intend to devise the remainder of his prop- erty to his grandchildren and others, why did he direct it to be conveyed to them? It is said that the testator did not attempt to pre- scribe to whom his property should belong, in the event of the failure or termination of the trust, and it is also said that the whole estate was vested in fee in the trus- tees by the creation of the life trust, in trust to convey the same at a future time to Fair's kindred. The opin- ion seems to be a confused medley of incongruities. The predicament in which the Court is placed is, in the first place, that the trustees having the fee in the remainder in trust to convey it at a future time to some- body, must at that future time convey it to the grand- children and others; and in the second place, that he 30 did not undertake to prescribe to whom it should be- long at the termination of the trust, nor did he intend to devise it to the classes or persons designated by his direction to transfer and convey such remainder, from which it necessarily results that the trustees cannot convey it to them as directed, because forbidden to do so as the Court holds. Why should they convey the corpus of the estate to such classes of persons if the tes- tator did not prescribe that it should belong to them after the termination of the trust? The Court holds, on the one hand, that the testator intended by his words of direction, to give the remainder of his property to his grandchildren and others, and, on the other hand, that he did not intend to devise it to them. Each of these postulates is a palpable contradiction of the other, and therefore it is just to say that the opinion is a con- fused medley of incongruities. It is manifest that the Court was inexorable in its de- termination that the testator did not intend to devise the remainder of his estate to the classes of persons to whom the Court admits he intended it should finally belong in full property. The Court says, as expressed in the syllabus of the case as reported, that "The law is not kindly disposed toward the tying up of a vast estate for a long period of years, by a scheme which includes the disinheritance of the testator's children." Would it not be more appro- 31 priate to say, the Court is not kindly disposed to the tying up of a vast estate for a long period of years, etc? The syllabus here quoted is a succinct epitome of so much of the subject matter of the opinion as appears at pages 540, 541, and 542, and also at page 549, which declares the law to be unkindly disposed to the tying up of large estates for long periods of years to the disin- heritance of heirs and the withdrawing of the same for all those years from the track of commerce. Is it just to say that the law is not kindly disposed to that which the law provides and permits to be done? A pre- conceived bias against the law is an embarrassment to a just administration of the law. A. decision of a Court influenced by bias against a law which it is called upon to expound is, to some extent at least, the expression of arrogated power. "Judicial power," said Chief Jus- tice Marshall, "as contradistinguished from the power of the laws, has no existence. Courts are the mere in- struments of the law. * * * Judicial power is never exercised for the purpose of giving effect to the wilt of the Judge; always for the purpose of giving effect to the will of the Legislature, or, in other words, to the will of the law." ( Osborne vs. Bank of United States, 9 Wheat, 773.) Here the great Chief Justice is speaking in relation to the rule which Judges are supposed to observe. A Judge may exercise a power which is mere brutum fulmen. 32 Unfriendly construction and adverse treatment of a law by a Judge or by a Court is of the nature of judicial legislation, abrogating the law. The limited and restricted construction of the words of the clause in the will, directing the trustees to trans- fer and convey, at the proper time, the remainder to cer- tain classes of persons, is directly opposed to the long- settled rules of construction pertaining to last wills and testaments. These rules are imperative. Chief Justice Marshall, in Smith vs. Bell, 6 Peters, 75, said: "The first and great rule in the exposition of wills, to which all other rules must bend, is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law." And so said the Court in Colton vs. Colton, 127 U. S., 300. Section 1317 of our Civil Code declares that "A will is to be construed according to the intention of the tes- tator. When it cannot have effect to its full extent, it must have effect as far as possible." This section, as also the decision of Chief Justice Marshall, has reference to the testator's intention as to the disposition of his property, and in no sense to the mode and way for effectuating such intention. Section 1328 of the Code provides that "Technical words are not necessary to give effect to any species of disposition by a will." The intention of a testator ex- pressed in his will as to the disposition of his property is said in many cases to be the Polar Star for the direc- 33 tion and guidance of Courts in the exposition of wills. (Samjcr vs. Baldwin, 20 Pick., 384.) Any form of words which, by fair and liberal con- struction, shows what was the testator's intention as to the disposition of his property, is sufficient. This is familiar law. The testator's direction to transfer and convey the property to the persons by him designated was a clear and unequivocal expression of his intention. The form and way prescribed for carrying his intention into effect could not impair or defeat such intention. The law is that a clause or paragraph in a will, or other instrument, which may be illegal and void for- one purpose, may be good and valid for another lawful in itself. This was so held in Savage vs. Burnham, 17 N. Y., 561, and the same rule was declared in Harrison vs. Harrison, 36 N. Y., 547. This rule was laid down by Lord Coke as follows: "Wheresoever the words of a deed, or of the parties without a deed, may have a double intendment, and the one standeth with law and right, and the other is wrongful and against law, the intend- ment that standeth with law shall be taken." (Coke Litt., 42.) This rule was applied in the case of a will in Atkinson vs. Hutchinson, 3 P. Williams, 260, and in Butler vs. Butler, 3 Barb. Ch., 310, by Chancellor Wai- worth, in these words: u ln the construction of a will, if the language of the testator is such that it may be construed in two 34 different senses, one of which would render the dis- position of his property illegal and void, and the other would render it valid, the Court should give that construction of the language which would make the disposition of his property effectual." And the same rule was laid down by Mr. Justice Storey, in Nightingale vs. Sheldon., 5 Mason, 336-339, as follows : "If there are two intentions on the face of the will, one of which is general and consistent with the rules of law, and another is special and incon- sistent with the rules of law, the latter yields to the former, and, if necessary to give effect to the will, must be rejected altogether." See, also, Hunt vs. Brooks, 80 Va., 500, and Prudon vs. Prudon-, 14 Ohio St. This rule of construction is in harmony with the whole doctrine of the law of wills, and especially appli- cable to the proper and just construction of the words of direction contained in the will of Senator Fair. Ut res magis valeat, quoin pereat is a maxim of the law of general application, and especally so as to wills. (Broom's Legal Maxims.) However invalid and void may be the mode or way provided by the testator for the disposition of his prop- erty, his language may be resorted to for the purpose of ascertaining his intention in respect to the disposi- tion of his property. This rule is declared in Van Kleek 35 vs. Dutch Church, 20 Wend., 477; Tucker vs. Tucker, 1 Selden, 418, and in Morton vs. Woodbury, 153 N. Y., 252., and in Cooke vs. Platt. 98 N. Y., 35, the rule is prac- tically demonstrated as to a void trust in its inception operating as a devise of the estate in fee to specified re- maindermen in being. In support of its limited and strict construction of the words of direction to transfer and convey, the Court necessarily subordinates the testator's main and para- mount intention for the ultimate disposition of his property, to the form, method and way indicated by him to that end. This is in direct contravention to a well- settled rule of law laid down in many cases. In the celebrated case of Thelluson vs. Woodford, 4 Vesey, Jr., 329, it was said by the Master of the Rolls, speaking of the intention of a testator as to the disposition of his property, that : "If the Court can see a general intention, con- sistent with the rules of law, but the testator has attempted to carry that into effect in a way that is not permitted, the Court is to give effect to the general intention, though the particular mode shall fail." The Supreme Judicial Court of Massachusetts laid down the same rule in the cases of Bartlett vs. Kim, 12 Mass., 543, and Malcomb vs. Malcomb, 3 Cush., 477, and the Supreme Court of the United States, in the great 36 case of Inglis vs. Sailors Snug Harbor, 3 Peters, 118, in speaking of this rule, said : U A rule so reasonable and just in itself, and in such perfect harmony with the whole doctrine of the law relating to the construction of wills, can- not but receive the approbation and sanction of all Courts of Justice." These several settled rules of construction, especially applicable to wills, failed to secure from our Court a passing notice. Certainly they were not heeded in the Court's construction of the will in question. There are many cases that have come before the New York Courts, in which it appears that, following the creation of a trust of real property, for the use and benefit of specified beneficiaries for and during their lives, there was a direction to convey the property re- maining at the termination of the life trust, to Arsons or classes of persons named, in none of which cases Avas it questioned that such a direction operated as an effective devise of the remainder. In none of them was it pretended that the direction needed to be carried into execution by a deed of conveyance., except in a few in- stances by powers in trust, in cases where it appeared that the author of the trust retained in himself the whole estate and interest, subject to the execution of the trust, until its termination. Such was the case of the trust created by Mrs. Curtis, which was considered in Toivn- send vs. Frommer. And in most cases where the testa- 37 t tnentary disposition of the remainder might be carried into effect by and through a power in trust conferred on the trustee, it was held that such remainder was vested in the residuary devisee at the moment of the creation of the trust, thereby obviating the necessity of an exercise of the power conferred on the trustee to convey. Such was the case of Oilman vs. Redington, and the Livingston case and Watkins vs. Vrooman and Reynolds, and Campbell vs. Stokes, and Cooke vs. Platt } 98 N. Y., 35. In Cookc vs. Plait, the devise was in terms an absolute conveyance of the estate devised. The de- vise was to the testator's executors, "to collect and re- ceive the rents, issues and profits thereof, and to con- tract to sell, mortgage and convey the estate in their discretion, upon trust nevertheless to divide and. dis- tribute the estate, or its proceeds, after the payment of debts, to the testator's four children in equal propor- tions.'' This trust was pronounced by the Court to be invalid and void because of the discretionary poiver given to the executors as trustees, and for another cause appearing in the opinion of the Court. And in its de- termination the Court said : "Our conclusions are : First, that no valid trust was created in the testator's real estate by the will in question; second, that the four children of the testator are vested with the title to the real estate of the testator, as devisees in fee under the will." The attempted trust in this case was invalid and void in its creation. .306568 38 And in Bruner vs. Meigs, 64 N. Y., 506, the Court said: "The power and direction to transfer and convey the share or portion of the estate to those entitled under the will after the death of the cestui que trust for life did not constitute a trust, or require the estate to be vested in the executors and trustees named. It was merely a power in trust and could be executed as such. The estate and interest of those entitled in remainder did not depend upon the execution of that power, and the vesting of their estate could not be defeated or delayed by the neglect or omission of those vested with the power." See, also, Moore vs. Appleby, 36 Hun., 368, and same case on appeal, 108 N. Y., 237. I believe it may be safely affirmed that in all cases where it appears that the testator intended in the crea- tion of the primary trust, followed by a direction to convey the remainder, to vest in the remaindermen a present interest., the Courts of that State have held that it was not necessary to have recourse to the exercise of a power in trust conferred. ( Chaplin on Express Trusts and Powers, Sec. 614.) It is worthy of notice that in all, or nearly all, of such cases, the only words of devise of the remainder were found in the direction to convey. It is evident that the New York Courts did not, in a single case, regard the direction to convey in any other sense than as words expressive of the testator's inten- 39 tion in making a testamentary disposition of his prop- erty. And in none of the decisions of the Courts of that State is it pretended or admitted that, after the termina- tion of such life trust, any estate remains vested in the trustees. That such can be the case is, in effect, denied in the above cases of Embury vs. Sheldon, Stevenson vs. Lesley, and clearly so in Bruner vs. Meigs, Moore vs. Appleby, 36 Hun., 368, and 108 N. Y., 237, and also in Cooke vs. Platt, 98 N. Y., 35, as above appears. These decisions are in harmony with others cited to the effect that the primary trust is only of a life estate a limited and temporary trust and trust estate and of only so much of the estate as may be necessary for the performance of the active duties of the trust, as said by Judge Peckham in Wathins vs. Reynolds and Vrooman, 123 N. Y., 211, and this is in harmony with our Code Statute of uses and trusts, which, for the most part, was wholly disregarded by our Court, as seen by its leading opinion in the case of James G. Fair, deceased. The New York Courts have with unanimity regarded a direction to convey, though not of the authorized pur- poses of a trust, as good and valid for the lawful pur- pose of devise, disregarding the direction to do that which is not permitted, and therefore futile and ineffec- tual, while our Court persistently refuses to give to the direction to convey the effect of a devise. Our Court gives to the words of direction to convey, a potency sufficient to break down the will, and to that end, holds such words to mean only that which is un- 40 authorized and forbidden by law, notwithstanding the rules of construction laid down by Lord Coke, and Chancellor Wai worth, and Justice Storey, as above ap- pears. Is there anybody who, after having read the will in question, ever doubted for a moment that the testator intended to give and devise the property of his estate to the persons or classes of persons named in the clause of his will, directing a transfer and conveyance of such property to them? What about "the first and great rule in the exposition of wills, to which all other rules must bend?" "The question is," said Denio, C. J., in Everett vs. Everett, 29 N. Y., 95, "not whether the language will bear some other construction a construction which will defeat the intention, and render the provisions of his will illegal and void but whether it will prevent a law- ful intention to have effect." The law of wills; the law giving effect to the general and paramount intention of the testator as to the dis- position of his property, rather than to the form and mode for effectuating such intention; the rule of con- struction required by law, where a will or other instru- ment is of a two-fold intendment, are respected and fol- lowed by the New York Courts. Is there any reason why they should not be respected and followed by our Courts as rules and guides in the exposition of wills? The decision of our Court, as to the first and second of the foregoing propositions, standing as the law of the 41 case in hand, would not, unaided, operate to injuriously affect the primary trust created for the use and benefit of Fair's children. To the end of breaking down the trust it was necessary and indispensable to establish the third of the foregoing propositions. THIRD. To break down the trust, valid in itself, it was essen- tial to make it dependent upon the alleged attempted futile trust to transfer and convey. These two factors the one a valid trust, and the other illegal and void are considered and held by the Court to be so interblended and inseparably connected as to compel the valid trust to share the ill fate of the alleged attempted illegal trust to transfer and convey. This was the third proposition necessary and indispensable for the breaking down of the valid trust. The devise of the whole estate to the trustees in fee, including the remainder of it, to be conveyed by them at a future time to the persons named as ultimate de- visees, and the alleged illegal direction to convey, our Court holds as necessarily constituting a scheme, which the testator intended to be carried into effect literally by a deed of conveyance, and that if it could not be so carried into effect he did not intend it to be carried into effect in any particular. To maintain this proposi- tion, it was necessary to steadily adhere to the construc- tion of the clause of direction to transfer and convey, as meaning a conveyance by deed, or deeds, and further, 42 to maintain that such direction cannot be construed to constitute and operate as words of devise. This limited construction, it appears, is in direct conflict with the law of wills and the rules of construction laid down by Lord Coke and eminent Judges all the way down from his time to the present day, and which are respected and maintained by the highest Courts of both England and America as elementary law. If it be admitted that the testator intended to create a trust to convey, which is an unauthorized medium for such purpose, and that because thereof it must fail, in such case it must also be admitted that he thereby in- tended to give the property to his grandchildren and brothers and sisters, and the children of deceased brothers and sisters, then living. By the condemned direction as to mode and way, he declared his wish and will as to whom the property should eventually belong in fee simple. The Court admits that such was his in- tention. Such intention stands out conspicuously and unequivocally. This was a lawful intention, while the mode provided for effectuating it was, as the Court holds, forbidden. The direction to transfer and convey related especially to the gift of his property to the per- sons designated thereby, to have it as their own prop- erty. As a declaration of his intention in this respect, it was clearly expressed, and no amount of argument can obscure this fact. No amount of asseverations em- phasized by adjectives and adverbs can destroy this con- spicuous fact. 43 The trust created for the benefit of the testator's chil- dren was a matter standing out independently from any question as to what might become of the remainder of the estate after the termination of that trust. The chil- dren, dead and gone, could not have any concern in such remainder. The disposition of it concerned the testator and those to be benefited thereby. How were the two estates inseparably connected? The Court does not tell us, except by reference to a supposed childish idiosyn- cracy of the testator constituting intention on his part to the effect that his gift to his grandchildren and brothers and sisters should be consummated only by and through a deed or deeds of conveyance, to be executed by the trustees, thus subjecting and subordinating his paramount general purpose to mode, form and way for effectuating such purpose. The idea or theory of an inseparable relation between the valid life trust and the alleged unauthorized direc- tion to transfer and convey the remainder is founded upon a conjecture as to the intention of the testator. The Court holds that he intended the two to stand to- gether or to fail and fall together. This determination is purely ex cathedra, and nothing beyond that, unless warranted by facts as premises justifying the conclusion. Therefore the Court's conclusion is open to question, and justly so, when found to be opposed to settled rules of law based upon bed-rock principles of reason and justice. The Court's conjecture in respect to the testa- 44 tor's intention that the valid trust and the alleged un- authorized direction to transfer and convey must stand or fall together is opposed to our Code Statute, which, declaratory of the general law of wills, provides that "when it (the will) cannot have effect to its full extent, it must have effect as far as possible." In Everett vs. Everett, 29 N. Y., xupra, it is said : "The question is not whether the language will bear a construction which will defeat the testator's intention and render the pro- visions of his will illegal and void, but whether it will prevent a lawful intention to have effect." The trust, valid as such in its creation, could, as an expression of the testator's intention to devise his whole estate to trustees in trust for the use and benefit of his children, have effect, even though the direction to transfer and. convey the remainder to grandchildren and others could l>e justly pronounced invalid and void. Why not? In Green vs. Green, 125 N. Y., the Court said: "The en- deavor is to find a way of upholding the will, not to break it down." In cases w r here some of the provisions of a will must fail because of illegalitv, the constant endeavor of Courts / 7 has been to save the lawful provisions of the will and to carry them into effect in accordance with the testa- tor's intention. Mere conjecture as to the testator's in- tention is never allowed to prevail against the law of wills. Nowhere in the will of Senator Fair is there any expression from which it can be inferred that he enter- tained in the remotest degree the intention attributed 45 to him by the Court to the effect that the valid trust must fail in case his direction to transfer and convey should be pronounced illegal and void. St-lwHie, resting for its support upon conjecture, is an intangible quantity an imaginary entity, as unreal as the phantom-like imagery of a far-off mirage, which, pursued, is ever far away. The discovered scheme of the testator, assumed to be found in his will, seems to be the offspring of the cen- tral idea or purpose imputed to the testator, to subor- dinate his general intention as to the disposition of the property of his estate to the form, method and way pointed out by him for the accomplishment of such in- tention and purpose. The form, method and way is constituted the Polar Star for the guidance of our Court in its exposition of the will in question. The Court says, at pages 541, 542, of the opinion, that "The testator intended, through the devise to the trus- tees and anticipated conveyances 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 tempo- rary income to his children during their lives, and ulti- mately the entire corpus of the property, leaving no part of the fee undisposed of; and his division of the income was based upon the consideration of the persons who would or would not ultimately get the corpus of his property." 46 The passage here quoted is somewhat obscure, but seems to be an endeavor by conjecture to determine that the testator intended a scheme which could not be car- ried into execution, and that as a consequence the will, in all its parts relating to real property, must fail. Ignorant, indeed, the testator must have been, if he supposed he could create a trust to convey the remain- der or that an attempted trust to that end could be per- formed. But he was not ignorant, nor is it pretended that he was, as to his intention that the corpus of the remaining estate should go directly to his grandchil- dren and others named, and that, too, by the expression of such intention in his words of direction to transfer and convey. The valid trust estate, and the estate in remainder vested in the residuary devisees, could con- sistently exist at the same time, independently of each other, as held in Embury vs. Sheldon, and Stevenson vs. Lesley, supra. The theory of a scheme that must break down the valid life trust, so far as anything is said by the Court in support thereof, seems wholly speculative and un- certain. What is said upon the point consists of as- severations only. The rules and doctrines of the law of wills and of double intendments, as laid down by Lord Coke and eminent Jurists since his time, negative the conclusion of our Court in respect to every proposition involved in the interpretation and construction of the will of James G. Fair, deceased. Placing the two factors, namely, the valid trust, complete in itself, and the alleged invalid devise of the remainder, side by side, and looking at and comparing them with judicial impartiality, it may be asked wherein are these two interblended, interwoven and inseparably connected? Wherein are they the evi- dence of the scheme imputed to the testator? Summing up, at page 549, the Court, per Garoutte, J., says: "The Court concludes that the fee to Fair's prop- erty was cast in the trustees in trust, to transfer and convey to certain of his kindred; that his in- tention to so place the fee stands out plainly from the face of the entire will; that no contrary inten- tion whatever appears therefrom, and that the will must fail by reason of the prohibited trust." And thereupon it is added : "We are more satisfied with this result, when it is considered that a contrary conclusion would per- petuate a trust of this vast estate, probably for a period of fifty years or more, and also result in the 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 was a clearly balanced case, these threatened results would furnish reasons for a de- cision the other way." These expressions of satisfaction, for the reasons as- signed, seem to be unfortunate as evincing a precon- 48 ceived bias against the will of the testator in all its parts. Why should the Court concern itself about the dis- inheritance of the testator's children, for whom he pro- vided for all their lives, the income of all his "vast es- tate?" Why should the Court declare itself as inimical to the law which authorizes the creation of trusts, which may perpetuate the existence of an estate for fifty years or more, withholding it for all that time from the power of alienation? Conceding that a man has the right to make a will, why subject it to unfriendly construction and judicial condemnation? The breaking down of a testator's will is very much like the making of a new will for him, disposing of his property, not in accordance with his wish and will, but as provided in cases of intestacy, by the laws of descents and distributions. San Francisco, March, 1902. )F CALIFORNIA AT T/VS UC SOUTHERN REGIONAL UBRARY FACILITY A 000 688 349