Senator Fair died, December 28, 1894, leaving a last will and testament, which was admitted to probate in the superior court for the city and county of San Francisco, November 16, 1896, and letters testamentary thereon were on the same day issued to W.S. Goodfellow, James S. Angus, and Thomas G. Crothers, who were named in the will as its executors. The testator left surviving him, as his heirs at law, three children; viz., Charles L. Fair, Virginia Fair, and Theresa A. Oelrichs, wife of Herman Oelrichs. Prior to his death, there had been born to Mrs. Oelrichs one child, Herman Oelrichs, Jr., who is still living and an infant. Fair also left him surviving three brothers and two sisters, and certain descendants of a deceased brother. After the expiration of four months from the issuance of letters *Page 564 testamentary upon the will, the children of the decedent made an application to the superior court, under section 1658 of the Code of Civil Procedure, for the distribution to them of sundry parcels of real estate belonging to the estate of which their father died seised, alleging in their petition that the said real property was not disposed of by said will, and that, as the heirs at law of the decedent, they were entitled to the same. Goodfellow, Angus, and Crothers, as executors of the will, and also as trustees named therein, filed an answer to this petition, in which they denied that the said property was not disposed of by the will, and alleged that by virtue of its provisions they were entitled to the full and undisturbed possession of all of the property, and of the rents, issues, and profits thereof, for the uses, purposes, and trusts mentioned and described in said will, giving also the names of those in whose behalf they claimed the trust had been created. Herman Oelrichs, Jr., together with certain infant beneficiaries provided for in the fifteenth paragraph of the will, appeared by their guardian ad litem appointed therefor, and filed a similar answer to the petition. Upon the hearing of the petition, the court found that the trust provided for in the will was, and is, as to all of said real estate, null and void in its creation, that the testator did not dispose of any of his real estate by his will, and that the petitioners are entitled to the whole of said real property; and thereupon entered a decree distributing the same to them in equal shares as tenants in common. From this decree Goodlellow, Angus, and Crothers have appealed, both in their capacity as trustees under the will and also as executors; and an appeal has also been taken on behalf of the infant beneficiaries, who had appeared by their guardian ad litem.
The ground upon which the superior court held the trust created by the will to be invalid, and which is maintained by the respondents herein, is, that it contravenes the provisions of section 857 of the Civil Code, in that it authorizes the trustees, upon the death of the last surviving child of the testator, to transfer and convey the trust property to the persons therein designated. The court further held that this trust was so inseparably connnected with the otherwise valid trust to receive the income of the property and apply the same to the use of the children of the testator during their lifetime, that, in view of the legal consequences flowing from its *Page 565 invalidity, it could not be presumed that the testator intended that the latter trust should be effective. It therefore held that the entire trust was invalid, and that the testator had died intestate as to the real property described in the complaint. The appellants concede that a trust created merely for the purpose of conveying real property to another is unauthorized; but claim that the provision in the will of Senator Fair, that upon the death of his last surviving child the trustees shall transfer and convey the trust estate to the persons therein designated, was not one of the"purposes"for which he created the trust; that the trust created by the will is an executed trust; that the trustees have only an estate in the property pur auter vie, which will terminate at the death of the last surviving child; that at the death of the testator the persons to whom he directed the property to be transferred and conveyed were vested with a remainder of his estate which will vest in possession at the death of his last surviving child, and that the estate which will then be vested in them will neither require nor admit a conveyance from the trustees for the purpose of clothing them with any interest in the property.
It is manifest from the terms of paragraph 15 of the will that it was the desire of the testator that his children should have no interest in his estate, other than the income thereof, during their lives, and that they should have no voice in the management or control of his estate; that no part of his estate, or of the income thereof, should ever belong to the issue of his son Charles; and that upon the death of the last surviving child one half of his entire estate should belong to the descendants of his two daughters, or of the survivor of them, and the other half, in equal shares, to his brothers and sisters, and their descendants by right of representation. If there is no legal objection to the form in which this desire has been expressed, it has became the will of the decedent, which the beneficiaries therein named are entitled to have enforced. The will of a testator is his expressed intention to dispose of his property in accordance with his desires, and if this intention is expressed in conformity with the requirements of law, it is the duty of courts to give it effect. The right of the owner of property to make a testamentary disposition thereof according to his own choice or preference is a wise provision of legislation, and its exercise within the *Page 566 limits fixed by the statute is a sacred right, which courts ought always to uphold.
Certain well-settled rules of interpretation are, that the will shall receive such a construction as will make it effective, rather than void (Civ. Code, sec. 1643; Toland v. Toland,123 Cal. 140); and that, of two modes of interpreting a will, that shall be preferred which will prevent intestacy. (Civ. Code, sec. 1326; Le Breton v. Cook, 107 Cal. 410.) The primary rule of all interpretation is, that the will is to be construed according to the intention of the testator. (Civ. Code, sec 1317.) For the purpose of ascertaining this intention, the language employed by him is to be interpreted by legal rules of construction, and the words used in the clause to be construed are to receive the first consideration; but his intention is the ultimate object to be sought in determining the construction to be given to these words, and is to be ascertained upon a consideration of the entire instrument. "We must take into account the other provisions of the will, and the general purpose deducible from its terms, for the purpose of ascertaining the intention of the testator, as expressed by his language." (Matter of Young,145 N.Y. 538.) If this intention is clear, it will control the meaning that would otherwise be given to particular words or phrases used by him. When the general intention is thus ascertained, it will control any particular intention which relates merely to the manner in which such general intention is to be carried into effect, and the terms employed by the testator are to be liberally construed, for the purpose of giving it effect, provided it is consistent with the rules of law. (Welshv. Huse, 49 Cal. 509.)" It is a familiar rule in the construction of wills, that the intention of the testator is to govern, although it may be opposed to some of the words of the will, and that the general intention is to control any particular intentions, especially when the particular intention relates to the manner by which the general intention is to be effected."(Malcolm v. Malcolm, 3 Cush, 477.) The rule was stated by the master of the rolls in Thellusson v. Woodford, 4 Ves. 329, as follows: "If the court can see a general intention consistent with the rules of law, but the testator has attempted to carry that into effect in a way that is not permitted, the court is to give effect to the general intention, though the particular mode shall fail." In determining whether the language of *Page 567 the will will permit effect to be given to the intention, "the question is, not whether the language will bear some other construction, — a construction which will defeat the intention, or render the provisions of the will illegal and void, — but whether it will permit a lawful intention to have effect."(Everitt v. Everitt, 29 N.Y. 95.) After the intention has been thus ascertained, courts will then apply the rules of law for the purpose of determining whether such intention can be carried into effect. If it contravenes any provision of law, the will will be held invalid, not for the reason that it does not express the intention of the testator, but because the law will not permit such intention to be carried into effect.
Section 857 of the Civil Code limits the creation of express trusts in real property to the purposes therein enumerated. As this section does not authorize the creation of a trust in real property for the purpose of conveying it to another, it ought not to be held that such conveyance was one of the "purposes" for which the testator intended the trust created by his will( unless such construction is demanded upon a consideration of the entire instrument, including the manifest objects and purposes of the will, as well as the language used by him in this direction to the trustees. (Manice v. Manice, 43 N.Y. 362.) Courts lean in favor of the preservation of all such valid objects of a will as can be separated from those that are invalid, without defeating the general intent of the testator. (Harrison v. Harrison,36 N.Y. 547.) Section 1317 of the Civil Code declares that "where the intention cannot have effect to its full extent, it must have effect as far as possible." In Cross v. United States Trust Co.,131 N.Y. 339,5 the principle was stated to be, that where several trusts are created by a will, which are independant of each other, and each complete in itself, some of which are legal and others illegal, and the legal can be separated from the illegal, and upheld without doing injustice or defeating what the testator might be presumed to wish, the illegal trusts may be cut off and the legal permitted to stand.
For the purpose, therefore, of determining whether the provision in the will for a conveyance of the trust property defeat the entire trust, it is proper to consider whether such conveyance is essential to carrying into effect the intention *Page 568 of the testator with reference to the disposition of his estate at the death of his last surviving child, and whether his general intention in reference to the property will be in any respect affected by disregarding this provision. Substance is not to be sacrificed to form, and if this provision is only a direction to the trustees to do that which they would have been authorized to do without the direction, or if the same result would follow with or without such conveyance, or if the persons to whom they are directed to transfer and convey the property would have the same interest therein, whether such conveyance is made or not, or would be entitled to demand such conveyance irrespective of this provision, the direction to convey the property does not become a "trust," even though it has been so termed in the will, and the execution of the conveyance will be held not to be one of the "purposes" for which the trust was created.
The trust created by the will of Senator Fair is an executed rather than an executory trust; that is, all of the directions for its execution are expressed in the will, so that the trustees have nothing to do but to carry out its provisions in accordance with the letter of the will. There are no duties to be performed by them, in regard to the conveyance, which involve the exercise of judgment or discretion on their part, or in which they are to act in accordance with the direction of any other than the testator. In the language of the books, the testator has been his own conveyancer. He has expressed in definite terms the form of the conveyance which the trustees are to make, the property to be conveyed, and the persons to whom the conveyance is to be made.
An executed trust may may at the same time be an active trust; that is, the trustees may have active duties to perform during the continuance of their estate, such as the care and improvement of the property, the receipt and application of its income. If, however, at the termination of their estate, the property will, under the terms of the trust, vest in the ultimate beneficiaries without any act or duty on the part of the trustees, it is an executed trust at the date of its creation. Mr. Perry, in his treaties on Trusts, says (sec. 359): "All trusts are executory in one sense of the word; that is, the trustee must have some duty, either active or passive, to perform, so that the statute of uses shall not execute the estate in the cestui que trust and leave nothing in the trustee. But such is not the meaning of judges when they speak of executed trusts *Page 569 and executory trusts. These words refer rather to the manner and perfection of their creation, than to the action of the trustee in administering the property. Thus a trust created by a deed or will, so clear and certain in all its terms and limitations that a trustee has nothing to do but to carry out all the provisions of the instrument according to its letter, is called an executed trust. On the other hand, an executory trust is where an estate is conveyed to a trustee upon trust to be by him conveyed or settled, upon other trusts, in certain contingencies or upon certain events, and these other trusts are imperfectly stated, or mere outlines of them are stated, to be afterwards drawn out in a formal manner, and are to be carried into effect according to the final form which the details and limitations shall take under the directions thus given. They are called executory, not because the trust is to be performed in the future, but because the trust instrument itself is to be molded into form and perfected according to the outlines or instructions made or left by the settlor or testator." The connection in which the phrase "conveyed or settled" is used in the text clearly indicates that these words are used as equivalents, and that the conveyance therein referred to is one which is to be made by way of settlement. In a note to this section the author says: "A mere direction to convey will not render the trust executory, if the directions are so clear and the limitations are so certainly defined that there is nothing to do but to convey in accordance with them. In order that the trust may be executory, there must be some room for construction, in order to determine the intention of the settlor; that is, to determine what limitations shall be made, and what shall not be introduced into the conveyance to be made."
Mr. Pomeroy (2 Equity Jurisprudence, sec. 1000) says: "Giving property to a trustee upon trust to convey to a person, or upon trust to convey it upon certain specified trusts, does not render the trust executory"; and gives the following quotation from the opinion of Lord St. Leonards in Egerton v. Earl Brownlow, 4 H.L. Cas. 210: "All trusts are in a sense executory, because a trust cannot be executed except by conveyance, and therefore there is something always to be done, but that is not the sense which a court of equity puts upon the term `executory trust.' A court of equity considers an executory trust as distinguished from a trust executing itself, and distinguishes it in this manner: Has *Page 570 the testator been what is called, and very properly called, his own conveyancer? Has he left it to the court to make out from general expressions what his intention is? or has he so defined that intention that you have nothing to do but to take the limitations he has given to you, and to convert them into legal estates?"
It is sometimes provided in the instrument creating the trust, that after the execution of the trust specifically prescribed the trustees shall divide the trust property, and upon such division convey it to certain beneficiaries then to be ascertained. In such cases the trust is executory, and the beneficiaries take no interest in the property, except by virtue of the conveyance. The trustees are clothed with a discretionary power, which can be exercised only by themselves, or under the supervision of a court of chancery. (Gilman v. Reddington, 24 N.Y. 9; Manice v. Manice,43 N.Y. 303; Cooke v. Pratt, 98 N.Y. 35; De Kay v. Irving, 5 Denio, 646.) So, too, when the conveyance is to be made in accordance with the appointment of a designated beneficiary or a third person, the trustees have an active duty to perform for the purpose of completing their trust, and the author of the trust is not his own conveyancer. In the present case, however, the trustees are not directed or authorized to divide the trust property, and any attempted division by them would be in excess of their power and nugatory. They are authorized simply to convey, upon the death of the last surviving child of the testator, one fourth part of the estate to the descendants of his daughter Theresa Oelrichs, one fourth part to the descendants of his daughter Virginia, and the remaining one half to his brothers and sisters, and to the children of any deceased brother or sister by right of representation. The conveyance as thus authorized, is of undivided portions of the estate, and those to whom it is to be made will hold the same as tenants in common.
In Bruner v. Meigs, 64 N.Y. 506, the testator devised his whole estate to trustees upon a trust, among others, to divide the same into as many shares as he left children surviving him, and to apply the income of each share to the use of the child for whom it was held, and upon the death of such child to convey and transfer the share of the estate held for it to certain designated beneficiaries. The court held that "the power and direction to transfer and convey the share or portion of the estate to those entitled under the will, after the death of thecestui que trust for life, did not *Page 571 constitute a trust, or require the estate to be vested in the executors and trustees named."
In Bacon's Appeal, 57 Pa. St. 504, the testator devised property to trustees, in trust, to receive the income and pay the same to his daughters, respectively, during their lives, and after their decease to convey the same to their respective heirs. It was held, that, as the trustees were but the conduit through which the title was to pass, no conveyance was necessary, the court saying: "In this state, when lands are given by will, in trust, to be conveyed, when no other power or duty is assigned to the trustee, when he has nothing to do with the enjoyment of the property, and is only an instrument to enable the cestui que use to acquire the legal estate, it has been understood that the conveyance is unnecessary. At most, it can be but a matter of form, rather than of substance. The cestui que trust, being entitled to the whole beneficial enjoyment, and the trustees having no right to interfere with it, no reason is apparent why a legal title should be held continuing in the latter. A severance of the legal right from the beneficial ownership is not to be maintained without some reason. In the case before us, the purpose of the trust was accomplished when Mrs. Bacon died. The testator did not intend that the trustees should hold any estate after her death. He contemplated its immediate transmission to the remaindermen — a transmission by conveyance, indeed, but no holding in trust for those in remainder. There was, therefore, nothing substantial to be secured by treating the legal title as remaining in the trustees and only an equitable interest in Mrs. Bacon."
In Weston v. Weston, 125 Mass. 268, the testator gave the residue of his property to trustees upon the trust to apply a portion of the income to the support of the widow, and after her death to "convey, transfer, and pay" the trust estate to his children. The court said: "We are of opinion that the will gave to Nathanael and Lucy each a vested equitable estate expectant on the termination of the life estate of the testator's wife, and liable to be divested only on her death during the life of the testator's wife without issue. The interest in the residue was given by the will, not by the conveyance from the trustees. Such conveyance is necessary only to make that a legal estate or interest which under the will and prior to the conveyance was an equitable interest. It was an equitable remainder after the equitable life interest *Page 572 of the testator's wife, and vesting immediately on death of the testator."
In Phipps v. Ackers, 9 Clark F. 583, the testator devised his estate to trustees, in trust, to convey it to his godson on his attaining the age of twenty-one years. The question before the court was the right to the income that had accrued during his minority, and this was held to depend upon whether the remainder was vested in him at the death of the testator. It was held that the son took a vested estate in fee, liable to be divested in the event of his dying under the age of twenty-one. In giving his opinion, Lord Lyndhurst said: "The question to be considered is, whether the direction to convey makes any difference with respect to the disposition of the property. I am clearly of the opinion that it does not, and I agree entirely in what fell from Sir William Grant in the case of Stanley v. Stanley, 16 Ves. 491, that the right is not affected by the direction to convey, but that the conveyance must conform to the right, and that the will itself is an equitable conveyance until that is displaced by the legal conveyance which is directed to be made."
In Campbell v. Stokes, 142 N.Y. 23, the testator devised his estate, in equal shares, to trustees, to be held by them for each of his children, to apply the income thereof to their use, and, upon the death of a child for whom the same was held, to convey, transfer, and pay over the share to its issue. Upon this provision of the will the court said: "The direction that the trustees, on the death of the parent, should `convey, transfer, and pay over and deliver' the parent's share to his or her issue was inserted to emphasize the right of the remaindermen, and was not the foundation of their title. The whole scope of the will negatives the idea that their rights were dependent in any way on the action of the trustees, or that the vesting of their interests awaited the exercise by the trustees of the power to transfer, convey, and deliver the share to the issue so entitled. The testator did not intend to die intestate as to any portion of his property. The whole was given to his children and their issue. The trust was created to secure to his sons and daughters the beneficial enjoyment of their several shares for life, and to preserve the principal for their issue."
In Toms v. Williams, 41 Mich. 566, the testator devised his estate to trustees, in trust, to make certain dispositions *Page 573 of the income, and thereafter to transfer and convey the property to the children of his deceased brother. The court held that the making of the conveyance would be the mere execution of a formal transfer of what had already passed in fact, and that the failure to make the conveyance would not deprive those persons of the estates which had vested in them, saying: "The will itself creates the rights and points out their owners."
In Cushing v. Blake, 30 N.J. Eq. 689, it was held that "a mere direction to the trustee to convey will not convert a trust into an executory trust. If the trusts are fully and accurately expressed, the rights of the beneficiaries are not affected by the direction to convey. The conveyance must conform to their rights as declared, and the equitable estate vests immediately." (See also Gilman v. Reddington, 24 N.Y. 9; Moore v. Appleby, 36 Hun, 368; affirmed 108 N.Y. 237; Doe v. Considine, 6 Wall, 458;Bowen v. Chase, 94 U.S. 812; Scofield v. Olcott, 120 Ill. 362.)
Townshend v. Frommer, 125 N.Y. 446, is relied upon by respondents as holding a different rule in New York from that expressed in the foregoing cases from that state; but we are of the opinion that it was not so intended by the court. The rule which was declared in Moore v. Appleby is neither overruled nor questioned in the opinion, and in the subsequent case of Campbellv. Stokes the rule in Moore v. Appleby was followed, andTownshend v. Frommer disregarded; and later, in Paget v. Melcher,156 N.Y. 399, it was, in effect, declared that a direction to the trustees to convey the estate to a designated class upon the determination of the lives for whose benefit the trust was established, created a vested remainder in that class. There are also other expressions in the opinion which are not in harmony with other opinions by the same court, and it is in professed disregard of Bowen v. Chase, 94 U.S. 812. The action was ejectment, for certain property which had been conveyed to a trustee, subject to a mortgage then existing upon it, upon trust to apply the income to the use of Mrs. Curtis during her lifetime, and "upon the further trust" to convey the same, at her death, in fee-simple, to such of her children as should then be living. This mortgage had been foreclosed in an action brought in the lifetime of Mrs. Curtis, against herself and the trustee, but her children then living were not made parties to the suit. The plaintiff's right to the land was derived through conveyances from the children of Mrs. Curtis, and the defendant's right, *Page 574 through the sale under this foreclosure. The question to be determined by the court was, whether the children of Mrs. Curtis were necessary parties to the foreclosure, and underlying this question was a determination of the character and extent of the estate taken by the trustee. The court held that the trust deed conferred upon the trustee the entire estate in the land, and also a power in trust to convey the same to the children upon the death of Mrs. Curtis; that, therefore, the children had only a contingent remainder, which would not vest in interest until her death, and consequently they were not necessary parties to the foreclosure. To the extent that this decision rests upon the statement in the opinion that the element of contingency was caused by the uncertainty as to the precise persons in whom would exist the right to enforce the execution of the power in trust, and the conclusion that this uncertainty prevented the remainder from vesting, it is at variance with the provisions of section 694 of the Civil Code of this state, and is not in accordance with other decisions in that state. (See Levy v. Levy, 79 Hun, 290.) The case itself does not appear to have been followed in any subsequent case in that court, nor does the rule therein stated appear to have received the approval of the courts of that state. In Campbell v. Stokes, supra, the same court affirmed the rule declared in Moore v. Appleby, supra, and, after saying that the case of Townshend v. Frommer, supra, was not intended to overturn the doctrine therein declared, said: "The case was peculiar and anomalous, and involved complicated questions under the law of trusts and powers." Levy v. Levy, 79 Hun, 290, involved the same question, and in commenting upon Townshend v.Frommer, the court said: "After an examination and comparison of that case with the decision in the case of Campbell v. Stokes, I have been unable to reconcile the same. And as the rule laid down in the latter case in respect to the vesting of estates seems to be that which most clearly conforms to the provisions of the revised statutes defining such estates, it should be followed." Mr. Chapin, in his treatise on Express Trusts, says (p. 498): "But, in general, the case of Townshend v. Frommer must be regarded as highly peculiar, and be treated with caution." The court itself appears to have been impressed with the peculiarity of the case, as may be seen by its remarks (p. 461): "In view of the many phases of uses and trusts presented to the courts, it is not remarkable that we *Page 575 should find observations in the opinions of judges not easily reconcilable with the conclusion in a particular case. I am not aware that any case presenting the precise question here can be found, though some may have a likeness in particular features." It is also worthy of observation that the opinion in Campbell v.Stokes was written by Judge Andrews, who dissented from the opinion in Townshend v. Frommer, and was concurred in by the entire court, including five of the judges who had rendered the decision in Townshend v. Frommer. It is quite possible that there were facts in the record which are not fully stated in the report of the case, from which the court was led to the conclusion that the trustee took the entire fee in the land, and that the children took no estate therein; and this conclusion may also have been reached upon the ground that, as the land was conveyed to the trustee with a power in trust by which he was required to convey the estate "in fee-simple," he took such an estate by the trust deed. (See Doe v. Field, 2 Barn. Adol. 564.)
Under the provisions of the will the trustees take an estate in the land devised to them, during the lives of the testator's children and the survivor of them, and no more. There are no words therein expressing an intention to confer upon them a fee in the land, its language being that they are "to have and to hold the same, in trust, during the lives" of the testator's children, and in further trust to dispose of the income "during the life or lives" of said children. Section 871 of the Civil Code provides: "When the purpose for which an express trust was created ceases, the estate of the trustees also ceases." The "estate of the trustee" is that which is necessary to enable him to execute the trust imposed upon him. The estate embraced in the trust — that is, the extent or quantum of interest taken by him — is determined by a consideration of the objects and purposes of the trust, rather than by a strict application of legal rules to the construction of the terms of the conveyance by which the estate is limited to him. (Sears v. Russell, 8 Gray, 86.) If an estate in fee is necessary to enable him to perform the duties of the trust, such estate will be held to have been taken by him, even though it is not given in express terms, and, on the other hand, though the form of the conveyance is such as would imply a fee, if necessary for the purposes of the trust, his estate will cease upon the complete execution of the trust. "Where no intention to *Page 576 the contrary appears, the language used in creating the estate will be limited to the purposes of its creation." (Doe v.Considine, supra.) Mr. Perry says (sec. 320): "The general rule is, that, whether words of inheritance in the trustee are or are not in the deed, the trustee will take an estate adequate to the execution of the trust, and no more nor less. Courts will abridge the estate where words of inheritance are used, if the execution of the trust does not require a fee, and so they will enlarge the estate if no words of inheritance are used in a deed." Jarman, in his treatise on Wills, says (vol. 2, p. 1155): "Trustees take exactly that quantity of interest which the purposes of the trust require, and the question is, not whether the testator has used words of limitation, or expressions adequate to carry an estate of inheritance, but whether the exigencies of the trust, as they appear on the face of the will, or refer to events subsequent to the testator's death, demand the fee-simple, or can be satisfied by any, and what, less estate."
The provision in section 863 of the Civil Code, that, "except as hereinafter otherwise provided, every express trust in real property, valid as such in its creation, vests the whole estate in the trustees, subject only to the execution of the trust," is limited by the succeeding sections to the estate given to the trustee for the purposes of the trust, and does not include any estate in the property which is not required by the trust.(Morffew v. San Francisco etc. R.R. Co., 107 Cal. 587.) This is clearly implied from the provision in section 866 of the Civil Code, that "every estate not embraced in the trust, and nototherwise disposed of, is left in the author of the trust or his successors," and by the provisions of section 864, that, notwithstanding the provision of the previous section, the author of a trust may, in its creation, prescribe to whom the real property to which the trust relates shall belong at the termination of the trust. If, in the creation of the trust, he desires to dispose of any estate in the property which is not embraced in the trust, he need not use the term "prescribe" or "shall belong" in order to make his purpose effective, but if he incorporates into the trust instrument an intelligible designation of the persons that he wishes to enjoy the property upon the termination of the trust, or to whom he wishes the property to go, he will be held to have "prescribed" an intention that the estate "shall belong" to those persons, and thus to have "otherwise disposed of" the estate. *Page 577 Whether he has prescribed any such intention is to be determined upon a proper construction of the language used by him, considered with reference to the manifest purpose of his will, as deduced from the entire instrument. In Scofield v. Olcott,120 Ill. 362, the will provided for the support of the testator's widow, during her lifetime, out of the income of the estate, and that thereupon certain legacies should be paid, and upon their payment the trustees should convey, assign, and deliver all the rest and residue of his estate to his son. The court said: "The testator in this case evidently intended that the whole of the remainder of his estate should be used for the support of his wife as long as she lived, and that upon her death, and after the payment of certain legacies, the residue should belong to hisson," and held that it vested in him at his father's death, notwithstanding the provision in the will for a conveyance to him by the trustee. In Gilman v. Reddington, supra, where the will provided that upon the happening of a certain event the trust property was to be "paid, conveyed, or made over" to certain beneficiaries, it was held that during the term of the trust the title was wholly in the trustees, as a temporary estate, but that there was created a devise of the future estate as a remainder in fee, which vested in the beneficiaries at the death of the testator, and that they would be entitled to the possession and enjoyment of the estate at the expiration of the trust. In Manicev. Manice, 43 N.Y. 378, the court said: "The direction to the trustees to pay over the principal share of each grandchild on his or her attaining the age of twenty-one years is a sufficient devise of the property, and will vest it in the devisee." InMoore v. Appleby, supra, it was held that under a statute containing the same provision as in section 863, it was designed that the trustee in the case of an express trust should be vested with so much of the estate during the continuance of the trust as should be necessary to maintain and execute it, and subject to that that the property in remainder should devolve upon the person entitled to it in remainder, and that the remainder thus vested was not defeated by a direction to the trustees to transfer and convey the estate to the remaindermen upon the death of the life cestui que trust, for the reason that such direction was not a purpose for which an express trust was authorized.
The law favors vested rather than contingent remainders, *Page 578 and in any case of uncertainty courts will construe the words of a will so that the remainder will vest at as early a period as possible. Words, in a will, directing land to be conveyed to or divided among remaindermen after the termination of a particular estate are always presumed, unless clearly controlled by other provisions of the instrument, to relate to the beginning of enjoyment by the remaindermen, and not to the vesting of the title in them. The uncertainty of the right of enjoyment, and not the uncertainty of its actual enjoyment, is what renders the remainder contingent. When the person to whom the remainder, after a life estate is limited, is ascertained, and the event upon which it is to take effect is certain to happen, it is a vested remainder, although, by its terms, it may be entirely defeated by the death of such person before the determination of the particular estate. It is the present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. (Williamsonv. Field, 2 Sand. Ch. 553; Moore v. Littel, 41 N.Y. 66; 4 Kent's Commentaries, 203.) Where an estate is granted to one for life, and to such of his children as shall be living after his death, a present right to the future possession vests at once in such children as are living, subject to open and let in after-born children, and to be divested as to those who shall die without issue. (Croxall v. Sherrerd, 5 Wall. 288; McArthur v. Scott,113 U.S. 380; Gilman v. Reddington, 24 N.Y. 9; Brown v. Lawrence, 3 Cush. 397; Blanchard v. Blanchard, 1 Allen, 223.)
These principles are embodied in the following provisions of the Civil Code: "Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death." (Sec. 1341.) "A testamentary disposition to a class includes every person answering the description at the testator's death; but when the possession is postponed to a future period, it includes, also, all persons coming within the description before the time to which possession is postponed." (Sec. 1337.) "A future interest is vested when there is a person in being who would have a right, defeasible or indefeasible, to the immediate possession of the property upon the ceasing of the intermediate or precedent interest." (Sec. 694) *Page 579
At the death of the testator there were living, of the beneficiaries designated in paragraph 15 of his will, the infant son of Mrs. Oelrichs, five brothers and sisters, and the issue of a deceased brother. These persons will have a right to the immediate possession of his property upon the termination of the estate of the trustees, defeasible, however, upon their death before that time; and if before the time for such possession shall arrive there shall be other persons born into the class for whom provision is made in the will, they will be included in such provision. If the testator's children had all died the day after his own death, the estate of the trustees would have terminated, and the child of Mrs. Oelrichs would have been entitled to the possession of one half of the estate, and his collateral kindred to the other half.
The foregoing considerations lead to the conclusion, that by the will of Senator Fair an equitable remainder in his estate was devised to the persons to whom the trustees were directed to convey upon the death of his last surviving child; that this remainder vested in those persons at the death of the testator, defeasible, however, upon their death prior to the death of his last surviving child, and subject to open and let in after-born members of the designated classes; that upon the death of the testator's last surviving child the estate of the trustees in the property will terminate, and a conveyance from them will neither enlarge nor diminish this remainder, but it will immediately vest in possession without any conveyance; that the provision for such conveyance did not create any "trust" in the property, but was a mere direction to the trustees to make effective the other provisions of the will, and is not to be construed as one of the "purposes" for which the testator created the trust.
The will does not suspend the power of alienation for a longer period than during the lives of persons in being at the death of the testator. The fact that a child of either of the testator's daughters, or of either of his brothers or sisters, may be enventre sa mere at the death of his last surviving child, will not have this effect. Such fact cannot be invoked to impair the validity of the trust. It is only the power of alienation which the statute forbids to be suspended, and this power is not suspended by reason of any difficulty or inconvenience that may attend its exercise. The suspension of alienation which is aimed at by the statute is such as is caused *Page 580 by the instrument creating the estate, and not such as arises from some disability on the part of the person in whom the estate is vested, such as infancy or other incapacity, or from any other cause outside of the instrument. (Toland v. Toland, 123 Cal. 140;Moore v. Littel, 41 N.Y. 66; Beardsley v. Hotchkiss, 96 N.Y. 214. ) Section 29 of the Civil Code provides: "A child conceived, but not born, is to be deemed an existing person, so far as may be necessary for its interests, in the event of its subsequent birth"; and section 1339 of the Civil Code provides: "A child conceived, but not born until after a testator's death, or any other period when a disposition to a class vests in right or in possession, takes answering to the description of the class."
The decree of distribution should be reversed.
Rehearing denied.
5 27 Am. St. Rep. 597.