By the Court,
Beatty, J.:In August, 1861, Davis S. Hunt died in Storey county, in this state, leaving a widow, the above named defendant, Jane G. Hunt, and three minor children, who are the plaintiffs herein. By his last will, made in 1859, after directing the payment of his debts, the said Davis S. Hunt disposed of his property as follows:
“Second. I give, devise and bequeath, all the rest and residue of my property, real, personal and mixed, of every kind and nature whatsoever, to mjr beloved wife, Jane G. Hunt, having the fullest confidence in her capacity, judgment, discretion and - affection, to properly bring up, educate and provide for our children, and to manage and dispose of my said property in the best manner for their interests and her own.’ He also appointed his wife sole executrix. In February, 1862, this will was admitted to probate and letters testamentary issued to the said Jane G. Hunt, who filed an inventory of the property of the estate which included a certain house and lot in Virginia city. Pending the proceedings in the probate court she conveyed this house and lot to Mercedes Navarro, one of her co-defendants, who conveyed it to L. P. Drexler the other of her có-defendants. No authority was obtained from the probate court to make this conveyance.
In August, 1874, the children of the deceased, having *447come of age, commenced this action against their mother and her grantees, seeking to charge them as trustees of the said house and lot, and demanding among other things an accounting for the rents and profits. • Mrs. Hunt and Mercedes Navarro made default, and Drexler alone defends.
The cause was tried by the district judge who found, in addition to the facts above stated, that Drexler was a purchaser in good faith and for a valuable consideration; and concluding, as matter of law, that the widow under the terms of the devise, took the beneficial as well as the legal estate, or that, if she was a trustee, she at least had full power to sell and convey, at her discretion, rendered a judgment in favor of Drexler for his costs. From that judgment the plaintiffs appeal, and in support of their appeal rely upon the proposition that their mother took under the will only the legal estate in the property of their deceased father, to be held in trust for them and herself, without any power of alienation, and that consequently she and her grantees are accountable to them as trustees. This, of course, involves a construction of the will, and the first question is whether the words, “having the fullest confidence in her capacity,” etc., create a trust. There are numerous cases to be found in support of either an affirmative or negative answer to this question. The earlier English cases support the affirmative. The later English cases generally support the negative, and- so do most if not all of the cases in the United States to which our attention has been called. Those relied upon by the appellants may, we think, be easily distinguished from this by reference to the terms of the wills under consideration. Without attempting to review the numerous decisions upon this point (which would be almost an endless task) we are inclined, after a careful examination of the text writers and the cases cited in the briefs of counsel, to coincide with the conclusions of Judge Story in relation to this matter, and to hold that in this case the devisee took the property devised as absolute owner and not upon trust. Judge Story says: “The doctrine of thus construing expressions of recommendation, confidence, hope, wish and desire, into positive and per*448emptorv commands, is not a little difficult to be maintained upon sound principles of interpretation of the actual intention of a testator. It can scarcely be presumed that every testator should not clearly understand the difference between such expressions and words of positive direction and command, and that in using the one and omitting the other, he should not have a determinate end in view. It will be agreed on all sides, that where the intention of the testator is to leave the whole subject, as pure matter of discretion, to the good will and pleasure of the party enjoying his confidence and favor, and where his expressions of desire are intended as mere moral suggestions to excite and aid that discretion, but not absolutely-to control or govern it, there the language cannot, and ought not to be held to create a trust. Now words of recommendation, and other words precatory in their nature, imply that very discretion, as contradistinguished from peremptory orders, and therefore ought to be so construed, unless a different sense is irresistibly forced upon them by the context. Accordingly, in more modern times a strong disposition has been indicated not to extend this doctrine of recommendatory trusts, but, as far as the authorities will allow, to give to the words of wills their natural and ordinary sense, unless it is clear that they are designed to be used- in a peremptory sense.” (2 Story’s Eq. Jur., sec. 1069.)
Redfield expresses himself still more strongly to the same effect. (Redfield on Wills, vol. 2, p. 423, sec. 15 d.)
There are, no doubt, strong reasons to be urged in support of the opposite view; but, on the whole, we should be disposed, if it was necessary to decide the point in this case, to decide it in conformity with the views of Judge Story and Mr. Redfield. But in this case it does not appear to be necesssary to decide whether or not the defendant, Jane G. Hunt, is accountable to the plaintiffs for the proceeds of her husband’s estate. Whether she took as a trustee or as absolute owner, it seems clear that she had the absolute right to sell and dispose of the estate at her discretion. The plain intention of the testator is that she should take his property and exercise the same control over it that he could himself *449Lave exercised. She is not only to “manage” it, but to “dispose of ” it, in case that appears to her to be the best thing for her own and her children’s interest, and the obvious meaning of the words “dispose of,”.used in that connection, is to sell-and convey. “Having the fullest confidence in her capacity, judgment, discretion and affection,” nothing was more natural than that he should have wished to confer upon her full power to sell and convey any portion of his real estate, untrammeled by the delays and difficulties of proceedings in the courts of chancery or probate. By such a course he rendered his estate more valuable, by enabling his trustee, if such she was, to sell without delay in case of an advantageous offer, and to give a clearer title 'than can easily be got through the intervention of the tedious, and dilatory, and complicated proceedings in the probate courts. He supposed he was taking the best care of her interests and the interests of his children in trusting everything to her discretion. If the event has failed to justify his confidence in her capacity, judgment, and affection for his children, it can only be said that his will is to be interpreted, not by the event but in the light of the confidence which he reposed in her at the time it was made. If she has wasted and mismanaged an estate for which she is morally, if not legally, accountable to her children, it is a misfortune for which they cannot be compensated by taking from a bona fide purchaser property which she had full power to sell and he an undoubted right to purchase.
But counsel for appellants contends that they may maintain this action by virtue of the provisions of section 15 of the act concerning wills. (Comp. L., sec. 826), which reads as follows: “When any testator shall omit to provide in his or her will for any of his or her children, or for the issue of any deceased child, unless it shall appear that such omission was intentional, such child, or the issue of such child, shall have the same share in the estate of the testator as if he or she had died intestate.”
This section has no sort of application to this case. The testator did not forget his children or any one of them in making his will. On the contrary, they were distinctly in *450liis mind, and are expressly provided for by leaving them and his estate to the disposal of the widow. (See Payne v. Payne, 18 Cal., 301-2, and other cases cited in respondent’s brief.)
Counsel for appellants also relies upon section 150 of the probate act (C. L. sec. 630) which provides that “No sale of any property of an estate of a deceased person shall be valid unless made under an order of the probate court,” etc.
If this provision were applicable, in a literal sense, to this case it would, no doubt invalidate the sale to Drexler. But it is not applicable at all. The probate act regulates the proceedings of executors and administrators, as such, and, acting in that capacity alone, the validity of their acts depends upon a compliance with its provisions. In this' case, however, the executrix dealt with the property in a double capacity; she Avas executrix and- also OAvner of the residuary estate, or, at least, a trustee expressly empoAvered to sell. The estate being charged Avith the payment of the testator’s debts, the creditors Avere under the protection of the probate court, and, as against them, no sale Avould have been valid unless made in pursuance of an order of court. But the plaintiffs are not creditors of the estate Avith rights superior to those of the devisee. They are claimants Avhose rights, whatever they may be, are subordinate to her power to sell. (See Estate of Delaney, 49 Cal. 77.)
Another point made by appellants is that, although, as trustee,-Mrs. Hunt might have had full power to sell the estate without any order of court, yet, having gone into court, seeking its advice and submitting herself to its control, she Avas guilty of a contempt of court in making a sale Avithout its authority.
If this Avere true it Avould not necessarily folloAV that because she Avas guilty of a contempt, therefore Drexler has no title. But, aside from this consideration, the point is fully disposed of by Avhat is said in respect to the preceding point.
Mrs. Hunt did not go into the probate court for advice as to her conduct as trustee (it was not the court to go to for that purpose), but merely to enable her to clear the estate from the claims of creditors. As executrix she was *451amenable to its orders, but as trustee she was entirely independent of its control.
As there was no motion for a hew trial, it is scarcely necessary to say that the argument of counsel, that the.findings of the district judge are against the evidence, cannot be considered.
The judgment is affirmed.