Upon the former hearing of this case I gave my assent to the conclusion reached by Mr. Justice Harrison, that an equitable remainder in the estate of Fair was devised to the persons to whom the trustees were directed to convey upon the death of his last surviving child. That the will created a trust to convey, I never entertained any doubt. Not only is the language apt and well chosen for that purpose, not only have its phrases been selected and employed with sedulous care, not only was it the opinion of the astute attorneys who prepared the pleadings of appellants that a fee was devised by the will to the trustees, but, in addition to all this, the question propounded upon the last argument of the case has remained without satisfactory answer, and is to my mind unanswerable: "If this language does not create a trust to convey, what different words would you or could you employ to create such a trust?" In the light of the arguments, oral and printed, upon the last hearing, and after a more detailed and exhaustive consideration of the authorities, I am convinced that in a natural desire to uphold the last will of the deceased, due weight was not given to the clear and explicit intent of the testator. While always of the opinion that a trust to convey was clearly meant and created in the will, and that such a trust, under the laws of this state, is absolutely void, it then seemed to me that the provisions of the will could be sustained in accordance with the doctrine of the cases holding that under such a trust an equitable interest or estate or remainder passes to the beneficiaries. The error of this position came from a failure to give due recognition to the fact emphasized and demonstrated upon the last argument, that only in those courts where a trust to convey is valid, as in England, or in those like New York, where its purpose is effectuated by an enabling statute, as a power in trust, has this rule or doctrine ever been declared. It is because the trust is valid, and that consequently a legal estate vests in the trustees, that an equitable interest or estate, eo instanti, following the legal, vests in or passes to the beneficiaries. But where, as in this state, the trust is void, and where, consequently, no legal estate can ever vest in the trustees, there can be no estate in law to support the equity. The whole trust is void. The legislature has prohibited a trust to convey. It has declared such a trust to be void. It has forbidden the separation of the equitable from the legal interest by this mode, and a court *Page 551 can no more say that the equitable estate, under such a void trust, passes to the beneficiaries, than it can say that the legal estate passes to the trustees. Such, I think, is the unanswerable argument in every jurisdiction where, as with us, a trust to convey is prohibited and declared void by express law. For if it can be said that equitable estates may vest in the beneficiaries notwithstanding they owe their existence to trusts prohibited by law, and void, it can only mean that the legislative inhibition against certain trusts is made utterly vain and nugatory. If the trust violates the rule against restraints on alienation, for example, as in Estate of Walkerly,108 Cal. 656,4 the solution then would be, not, as there declared, that, the trust being void, all estate, legal and equitable, attempted to be created were likewise void, but, rather, that, notwithstanding the trust is void, it is plain what the testator intended, and it will be held that equitable estates passed to the beneficiaries, by reason of which they will be permitted to draw to themselves the legal title. Such, of course, cannot be the law.
To uphold the terms of the will, as creating a power in trust, presents equally formidable obstacles. First, because the testator's plain and obvious intent, it seems to me, was to create, not a power, but an explicit trust; but if that point be waived, still the power is a power in trust, and it either must be held that the repeal of powers in trust by the legislature of this state abolished any such power if it did exist, or else that, notwithstanding the declaration of section 847 of the Civil Code, uses and trusts in relation to real property are those only which are specified in this title; that powers in trust, as known to the common law, with all their labyrinthal difficulties and sinuosities, are in full force and effect with us; and that while the legislature has at great pains simplified trusts and estates, it has designedly and intentionally perpetuated the most intricate and difficult subject of common law and equity cognizance, and, through powers in trust, has preserved all the difficulties which it attempted to eliminate in dealing with trusts.
It is unquestionable that it was because powers at common law were abstruse and full of uncertainty that the New York codifiers recommended the abolition of all not expressly declared *Page 552 and reserved. (Jennings v. Conboy, 73 N.Y. 233.) The design was to simplify the cumbersome system which had grown up at common law. Our own code commission followed the example of New York, and adopted bodily their proposed scheme. As part of this scheme were the following sections: —
"Where an express trust in relation to real property is created for any purpose not enumerated in the preceding sections, such trust vests no estate in the trustees; but the trust, if directing or authorizing the performance of any act which may be lawfully performed under a power, is valid as a power in trusts, subject to the provisions in relation to such powers contained in title V of this part." (Civ. Code, sec. 860)
"Nothing in this title prevents the creation of a power in trust for any of the purposes for which an express trust may be created." (Civ. Code, sec. 861)
"In every case where a trust is valid as a power in trust, the real property to which the trust relates remains in, or passes by succession to, the persons otherwise entitled, subject to the execution of the trust as a power in trust." (Civ Code, sec. 862)
They were properly placed under the chapter on uses and trusts, which begins with the declaration that "uses and trusts in relation to real property are those only which are specified in this chapter." For powers in trust are trusts. As Sugden says, "Powers, as we have seen, are mere declarations, of trust" (Sugden on Powers, 119); and Lord Hardwicke declared that "such powers [where any person other than the holder has an interest in its execution] ought rather to be called trusts than powers." (1 Perry on Trusts, sec. 248.) These sections were repealed with other sections, and, recommending their repeal, our learned codifiers reported to the legislature as follows: "We have proposed to strike out the whole chapter on powers, as wholly unsuited both to the wants and habits of the people, retaining one or two sections by amendment of other portions of the code in places where the provisions of those sections properly belong."
What, then, was the effect of these repeals? Can it be said that they meant the revivification of the abstruse common-law system? Can it be fairly argued that that incomprehensible scheme was better suited to the wants and habits of our people than the simpler one taken from New York, and by us afterward abolished? And if this was in the mind of the revisers *Page 553 and legislature, and if in their contemplation the common-law system was revived by these repeals, why, in expunging those sections, were they so careful to preserve, and to report their preservation of, certain other necessary powers? The re-enactment of these carefully preserved powers was unnecessary, because they were existent common-law powers. Can any other conclusion logically be reached than that the repeal meant, not the restoration of common-law powers, but a further simplification and advance over even the New York system, by the abolition of many of the powers which that state had preserved, and the perpetuation of only such as were considered suitable to the simpler wants and habits of the people of this state.
But if it be conceded that common-law powers in trust do exist in this state, still another difficulty confronts us. In England there would not be, and never has been, any occasion to resort to a power in trust to save a will like this, for the trust to convey would be valid and operative as a legal, active trust. The English courts uniformly and unhesitatingly have upheld such wills as creating valid trusts. What those courts might do if their law declared such trusts illegal, — whether they would convert the trust into a power in trust, and thus uphold it, — is a question that, as it has never been asked of them, it would be mere speculation to declare what their answer might be. As the necessity never arose at common law for declaring that such language created a power in trust, there is no common-law decision to act as guide. And this was appreciated in New York, where such trusts, as here, are admittedly void, and are saved only by force of their enabling statute, — a statute which we have not, and which effectuates the void trust under an express grant of power.
That the void trust may still be treated as valid to the extent that the testator must be held to have prescribed the persons or class to whom the property shall go upon the failure or termination of the trust (Civ. Code, sec. 864), is to my mind also an untenable proposition. There is never, or seldom, any difficulty in determining to whom or in whom the testator or settlor means that his trust property shall descend or vest upon the termination of the trust; but it does not follow from this, that, because in indicating this intent he has prescribed an unlawful means for its accomplishment, the result will be assured without regard to the mode. In the case of trusts that violate the rule of restraints on alienation, there is *Page 554 never any doubt to whom the testator meant that the remainder or reversion should go; but in such cases no court has ever selected the designated beneficiaries, and declared that, notwithstanding the fact that their sole claim to title is through a void trust, nevertheless the testator has sufficiently indicated that upon the failure of the trust the trust property is to go to them, and the trust having failed, they shall take at once. There was no difficulty in the case of Estate of Walkerly, supra, in determining to whom the testator meant that the land should go, but the thought was never entertained that after failure of the trust these persons should still be regarded, within the testator's intent as prescribed and designated by him, to take in the event of the failure of the trust. There, as here, they were to take in conformity with the terms of the trust, or they could not take at all. So that if it be considered in this case that there was an attempt to prescribe the class, it was an attempt either by a void trust or an unauthorized power in trust, and if the mode be invalid, the heirs may not be disturbed in their rights. In Estate of Walkerley it is said: "A testator must do more than merely evince an intention to disinherit, before the heir's right of succession can be cut off. He must make a valid disposition of his property." We cannot in this case, more than in any other, substitute a valid method for the invalid one so plainly designated.
For reasons amplified in the preceding opinions, is seems apparent that the failure of the trust to convey defeats the testator's trust scheme. It leaves the whole beneficial interest and the whole reversion in his children living at the time of his death, — a result essentially and radically at variance with that which he sought to accomplish. The consequence, then, in these particulars, is the same as though he had died intestate. The property will descend to his heirs at law, as provided by the rules of succession in this state, so that those who are the immediate and direct offspring of his blood will succeed by inheritance.
For these reasons I concur in the judgment.
4 49 Am. St. Rep. 97, and note.