S.F. No. 2764 is an appeal by Charles F. Sanford, an heir at law of the decedent, from that part of the decree of distribution which distributes one fourth of the Rancho Los Meganos to Mary Sanford and Huntington Sanford, subject to a certain trust declared in the twenty-ninth paragraph of decedent's will. S.F. No. 2797 is an appeal by the same appellant from an order denying his motion to vacate the decree and grant a new trial of the petition for final distribution.
In the twenty-fifth, twenty-sixth, twenty-seventh, and twenty-eighth paragraphs the testatrix says, "I give and bequeath" to various named persons certain undivided parts of the rancho, — amounting in all to the undivided three fourths thereof. The said twenty-ninth subdivision is as follows: "I give and bequeath to said Professor George Davidson, Dr. C.N. Ellinwood, and Andrew S. Moseley, one undivided fourth of the said Rancho Los Meganos in trust, however, to receive the rents, issues, and profits thereof, and to apply the net income of the same to such extent and at such time or times as in their judgment may be proper to and for the use and benefit of Mary Sanford and Huntington Sanford, children of my nephew, John Edward M. Sanford, of Dorchester, Mass., until said Sanford shall attain the age of twenty-five years, whereupon they shall convey the same to said Mary Sanford and Huntington Sanford. Said trustees shall have the power to lease the whole or any portion of the lands hereby conveyed to them to such persons, and upon such rents and for such time as to them shall seem meet." The rest of the paragraph is immaterial. The portion of the decree appealed from distributes the one fourth of the rancho in accordance with this paragraph.
This paragraph creates a forbidden express trust to convey real property to beneficiaries. It is covered by the decision of this court in the Estate of Fair, 132 Cal. 523,1 and, for the reasons given in the latter case, is invalid and void. It is conceded that if the paragraph in question *Page 99 is within the Fair case it is invalid. Respondents attempt to make a distinction between the two cases; but the grounds upon which the distinction is sought to be made are untenable. The main difference between the wills in the two cases is, that in the case at bar the language used is concise and simple, while in the Fair will many more words were used, and the intent to create a trust to convey was stated in various phrases and frequently repeated. The scheme in the will of Fair was a very complex one. In selecting those who should be his ultimate beneficiaries, at the end of a probably very long period of time, he had to provide for a great many different contingencies which might happen; and in doing so he frequently restated his direction to his trustees to convey. And, in response to the many arguments made by the appellants in that case, — that there was in the will no trust to convey, or that such trust should be explained away, or that the trust to convey should be transmuted into a direct devise to the so-called remaindermen, — it was quite natural that in the opinions of the court the various phrases and repetitions in the will should be noticed. But the question whether or not there was a forbidden trust to convey is the same in both cases, and must be answered in the same way. In the will of Fair the trustees were to hold the property and to dispose of its net income during the lives of the three children and the survivor of them, and "upon the death of such survivor" to "convey" to the named beneficiaries. In the case at bar the trustees were to hold the land "in trust," and to dispose of the income until Huntington Sanford should attain the age of twenty-five years, "whereupon they shall convey the same" to the beneficiaries. The meaning of the words "upon the death of such survivor," in the one instance, and "whereupon," in the other, is the same; each is used merely to designate a point of time at which the trust to convey is to be executed. It can no more be rightfully contended in the case at bar that the point of time was after the termination of the trust than it could have been so contended in the Fair case, where such contention was made and held to be not maintainable. Indeed, such contention, if sustained, would destroy the efficacy of the whole doctrine of the invalidity of a trust to convey; for in such an attempted trust the conveyance is *Page 100 always to be made after some designated prior period of time, and ends the transaction.
The contention that in the will in the case at bar the direction to convey was not one of the trusts intended to be declared by the testatrix is no more maintainable than a like contention was in the Fair case. The trust here was to hold the land and dispose of the income for a designated period, and then convey it to the beneficiaries; and these were exactly the provisions of the Fair will. The fact that in the latter will the words "trust" and "convey" were used in close proximity, while in the will in the case at bar there were some other words between "trust" and "convey," makes no difference; the intervening words do not change the sense, and the meaning in both wills is the same.
It is said that the words in the will, "the lands hereby conveyed to them," do not necessarily mean a conveyance in fee, because there may be "conveyed" an estate in lands less than a fee. But a general grant of land without limitation carries a fee. The words used by the testatrix in granting the land to the trustees are exactly those that were used in granting lands to all the other devisees; and would any one claim that the latter did not take a fee? It is said that, no matter what general words are used in a trust, the trustee takes only such estate as is necessary for the trust declared; but that principle has no force here, because in the case at bar, as in the Fair case, the estate created by the general words is necessary to the execution of the trust. The trustees had to "convey" to the beneficiaries the estate which had been granted to the former by the testatrix; the beneficiaries could get such estate in no other way, for the will here is as barren of any words of direct devise as was the will in the Fair case. The contention that the will can be construed as a mere attempt to "prescribe" the persons to whom the real property should belong, is sufficiently answered in the opinion of the court delivered by Mr. Justice Garoutte in the Fair case.
The attempted trust during the few years before Huntington Sanford shall have attained the age of twenty-five years is apparently of little importance; but we think it is invalid, — if not for the reasons given in the Fair case, — because it is, in its main feature, not imperative, but merely discretionary; and it is conceded by respondents that if such be the case the *Page 101 estate for years is void. By the will the trustees are to receive the rents and profits of the land and apply the net proceeds of the same to the use and benefit of the beneficiaries "to suchextent" and at such time or times as in their judgment shall be proper. This clause is not susceptible of the construction that it refers merely to the time or times at which the income shall be applied. It clearly leaves to the discretion of the trustees what amount of the income shall be applied. It is not a direction that the whole net income shall be applied, leaving to them only the power to determine at what times they shall pay it over; they are to apply the net income only "to such extent" as they may deem proper. These words constitute a proposition independent of the direction as to "time or times," and which relates to a different subject; they cannot be construed as relating merely to time without making them utterly useless and senseless.
Our conclusion is, that the trusts attempted to be created by the said twenty-ninth paragraph of the will are invalid and void; that the one fourth of the rancho in question must be distributed to the appellant and the other heirs at law of the decedent; and that the part of the decree of distribution appealed from must be reversed.
The foregoing views make it unnecessary to pass upon the appeal from the order denying a new trial; and that appeal may be disregarded.
That part of the decree of distribution appealed from is reversed.
Henshaw, J., Van Dyke, J., and Garoutte, J., concurred.
1 84 Am. St. Rep. 70.