I concur in the judgment and in the opinion of Mr. Justice Henshaw. It is well to notice, however, that in Estate of Willey,128 Cal. 1, the first clause of the deed to Carpenter and Boericke was not attacked on the ground that it attempted to create a trust not permitted by section 857 of the Civil Code. Moreover, in Estate of Willey, which dealt entirely with the will, the question whether or not said first clause of the deed was valid was immaterial. The will, of course, did not take effect until after the death of the testator, and the reference, in the will, to the deed embraced only those trusts declared in the deed which became operative after the testator's death; and for the uses and purposes of these latter trusts he devised and bequeathed to Carpenter and Boericke "all the property, real and personal, . . . . of which I may die seised or possessed."
Rehearing denied. *Page 627