The argument and authorities cited in support of the application for rehearing have been accorded careful consideration. The court is not convinced that error affects its judgment of affirmance; that the stated doctrine of McBrayer v. Cariker, 64 Ala. 50 — as amplified and reaffirmed in Edwards v. Edwards, 142 Ala. 267, *Page 347 273, 274, 39 So. 82 — is unsound or inapplicable to the case now under consideration. The stated doctrine of the McBrayer and Edwards Cases, supra, is that recently applied — though to somewhat different terms in the will — in Bibb v. Bibb, 204 Ala. 541, 86 So. 376.
It is evident that in Kidd v. Cruse, supra, this court did not intend to qualify or to repudiate the stated doctrine of the McBrayer and Edwards Cases, the latter being approvingly quoted, in the presently pertinent particular, in the Kidd-Cruse appeal, 200 Ala. 293, 295, 76 So. 59. The construction given the Kidd will and deed of trust was that they "merely conferred a power or imposed a trust to convey, as directed in the will and in a former deed of trust referred to and made a part of the will." 200 Ala. 295, 76 So. 61. Under the construction of both the instruments executed by Kidd the conclusion was in strict accord with the design and effect, in proper cases, of Code 1907, § 3408 (section 1306 of the Code of 1852). Not so with the deed quoted in the original opinion ante. In this deed the trustee was made the repository of the legal title until it could be determined what children would be born of the wedlock of Epsie A. and Thomas H. Coker. To permit the statute (section 3408 [section 1306 of the Code of 1852]) to work the transmission, at once, of the title (remainder) to the beneficiaries then in esse would have subverted the deed's manifest intent; would have immediately invested them with a title that the trust contemplated should abide in the trustee until it could be determined what children would be born to the Cokers. It is not reasonable to suppose that the statute (section 3408 [section 1306, Code 1852]) contemplated the complete execution of the trust that only the undefined future could disclose who should be all its beneficiaries. The text of section 520 of 2 Perry on Trusts does not conclude to a different effect, when it is borne in mind that until the wedlock of the Cokers terminated it could not be ascertained or determined who were the beneficiaries of the class made cestuis que trust.
The application for rehearing is denied.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.