actual residence of sixty days in such county or district when the time for taking his seat had arrived; or, in other words, he could be a nonresident of such county or district at the time of the election, and acquire the neces sary residence after the result of the election is known. Section 6 of article 4 of the constitution provides that no person shall be eligible to the office of governor or lieutenant governor who shall not have been a resident of the state two years next preceding the election.' The meaning of this is obvious, but it may properly be considered with the other constitutional provision referred to, as strengthening the presumption which arises from the language of subdivision 2 of section 692 of the code, that the general assembly in enacting it intended to require that the person elected shall be eligible to hold the office at the time he is chosen.

"The views I have expressed find abundant support in the authorities. Under the constitution of Nebraska an elector must have resided in the state six months. The statutes of that state provide that the election of any person to any public office may be contested when the incumbent was not eligible to the office at the time of the election.' It will be noticed that this language is identical with that of subdivision 2 of section 692 of our code. But in the case of State v. McMillen, 23 Neb. 386, it was held that the person elected was required to be an elector at the time of the election. In that case the incumbent had not resided in the state six months at the time of the election, but had been a resident of the state more than six months when the term of office for which he had been a candidate began. The court referred to the Wisconsin and Kansas cases, but declined to follow them on the ground that the constitution and statutes of Nebraska were controlling, and held that the incumbent was ineligible. In Territory v. Smith, 3 Minn. 240, 74 Am. Dec. 749, it was held that the qualification of residence must be consummated at the time of the election, and that it would not be sufficient if completed at the time of entering upon the duties of the office. In Searcy v. Grow, 15 Cal. 118, a constitutional provision was under consideration, which reads as follows: 'No person holding any lucrative office under the United States, or any other power, shall be eli gible to any civil office of profit under this state." It was held that a person, to be eligible to an office under that provision, must be capable of taking the office at the time of the election. In State v. Clarke, 3 Nev. 566, a constitutional provision substantially the same as that of California quoted was construed, and the ineligibility thereby created was held to be want of capacity to be legally chosen to, and also want of capacity to legally hold, the office. In Reynolds v. State, 61 Ind. 404, it was held that, under a clause of the constitution, which provides that no person shall be elected or appointed as a county officer who shall not be an elector of the county, a person to be elected to a county office must be an elector at the time of the election.' The quotation from Cushing found in the opinion of the majority is in entire harmony with the cases I have cited. It recognizes the Wisconsin and Kansas rule and the custom of Congress, but holds that the phrases shall be eligible to a seat,' and 'shall be ineligible,' when found in the law in regard to the qualifications of a person for office, relate to the time of the election, and not to the time of assuming the offi cial functions. In my opinion a person, to be eligible to election to a county office under the statutes of this state, must be capable of taking the office at the time of the election. The fact that to so hold would deprive one who appears to be most worthy, and the choice of the people, of an office on what, in this case, may seem to be technical grounds, is not a sufficient

reason for adopting a construction of our statutes not warranted by wellsettled rules of interpretation, which would introduce endless confusion and uncertainty in the administration of our election laws.

"I am instructed to say that GRANGER, J., concurs in this dissent." A question similar to one of the questions involved in the principal case was presented for decision in the case of Shuck v. State, 136 Ind. 63, and the opinion there announced was in conformity with that in the principal case. Shuck had been nominated and elected to the office of county auditor at an election held in November, 1890. On November 7th of the same year the county treasurer filed a statement with the governor to the effect that Shuck, as an ex-county treasurer, was in default in the sum of eighteen hundred and eighty-four dollars and six cents, and, basing his action upon these statements, the governor declined to issue the com. mission to Shuck on the ground that he was ineligible to hold office under section 10 of article 2 of the constitution of the state. On November 20, 1890, Shuck called at the office of the county treasurer, and inquired how much it was claimed that he was short in his accounts, and, upon receiving a response, procured the money for which it was claimed that he was in default, and immediately paid it over to the proper officer, and took his receipt therefor. This payment was made by him under protest, he, at all times, denying that he was in default. Thereafter he demanded his commission from the governor, but the county treasurer then claimed that the shortage was four thousand eight hundred and fifty-four dollars and eighty-four cents, and the commission was still withheld. The official bond of Shuck as auditor was filed November 18, 1890, but the commissioners refused to approve it, because he had no commission from the governor. Meanwhile, the former incumbent of the office continued to hold possession thereof until December 9, 1891, when the board approved Shuck's bond as auditor, and he at once entered upon the discharge of his official duties. Thereafter an action was brought against Shuck in which a general verdict, on June 17, 1892, was returned by the jury in his favor, but they also answered special interrogatories, and the court, upon such answers and on the relator's motion, on October 14, 1892, rendered a judgment in favor of the relator and against the defendant Shuck, and from this judgment he appealed. The ultimate decision of the case in the appellate court was held to depend upon whether or not Shuck was in default at the time of the commencement of his official terin of office, and it was held that it was not material whether or not he was in such default at the time of his election, because the provision of the constitution of the state declaring a person so in default to be ineligible to office must be construed as meaning ineligible to hold office, and not merely ineligibility at the time of the election. Upon this point the court said: "In view of the record in this case we do not think it necessary that we should consider the rulings of the trial court upon the demurrers to the several paragraphs of the complaint. We may suggest, however, that the words eligible to any office,' as used in section 91 of the constitution of Indiana, mean 'eligible to hold the office,' and do not refer to the election. If a person is eligible to hold the office when the time for induction in office arrives he may take the office then, though not eligible to hold the office when elected. The words 'eligible to any office' relate to the capacity to hold the office and the term 'eligible' means regularly qualified." In support of these propositions the court cited the cases, Brown v. Goben, 122 Ind. 113; Smith v. Moore, 90 Ind. 294.

OFFICERS.-EQUITY JURISDICTION TO TRY THE TITLE TO OFFICE: See the extended note to Fletcher v. Tuttle, 42 Am. St. Rep. 236.

PUBLIC OFFICE-ELIGIBILITY.-A foreigner constitutionally ineligible to election to office at the time of his election, for want of declaration of intention to become a citizen, cannot hold the office, although after election, and before the commencement of his term of office, he duly declares such intention: Taylor v. Sullivan, 45 Minn. 309; 22 Am. St. Rep. 729, and note. An alien who has not declared his intentions to become a citizen of the United States may be elected to a public office, and may hold the same in case his disability be removed before the term of office begins: State v. Murray, 28 Wis. 96; 9 Am. Rep. 489. One who was disqualified under the constitution to "hold office" at the time of his election is eligible if the disability was removed before the issuing of the certificate and taking possession of the office: Privett v. Bickford, 26 Kan. 52; 40 Am. Rep. 301.

MEEK V. Briggs.

[87 IOWA, 610.]

WILLS-TITLE TO PROPERTY WHEN NOT VESTED IN THE BENEFICIARY.-A will purporting to devise and bequeath certain property to the testa. tor's daughter, but naming certain persons as trustees to manage and control such property, and to apply the income and increase thereof to her support, comfort, and education, so far as required for such purposes, and declaring that the trust shall be deemed a limitation upon the title of the daughter, does not vest the legal title in her, nor give her any power to dispose of the property, though the will also confers upon the trustees power to turn the property over to her when they shall deem her fully competent and worthy to be intrusted with its care or control, or when she shall have married some worthy and competent man.

TRUST. THE INTENT OF A DONOR TO CREATE A TRUST need not be expressly declared. It may be inferred from the powers conferred. EXECUTION. THE INTEREST OF A BENEFICIARY UNDER A TRUST DEED IS NOT SUBJECT to execution nor to garnishment when the estate is held by trustees with the power to take and keep possession thereof, and to apply the income and increase to the support, comfort, and education of such beneficiary, so far as may be required for such purposes. Her creditors can have no greater interest in the property than she possesses, and she cannot control the disposition of the trustees, nor require them to turn the property over to her. That result cannot be indirectly secured through the action of her creditors attempting to reach the property or its proceeds under process against her. PERPETUITIES.-A WILL DEVISING AND BEQUEATHING PROPERTY TO TRUSTEES, to hold possession, and to apply the income and increase to the support, comfort, and education of the beneficiary, so far as may be required, and to turn the property over to her when they shall deem her competent and worthy to assume its control, or when she shall have married some worthy and competent man, does not create a perpetuity forbidden by a statute declaring that every disposition of property

is void which suspends the absolute power to centrol the same for a longer period than during the lives of persons then in being, and for twenty-one years thereafter. On the death of the beneficiary the estate will vest absolutely in the heirs at law.

Bolton & McCoy, for the appellant.

F. M. Williams, for the garnishee.

613 KINNE, J. The facts disclosed by this record are, that the plaintiff recovered a judgment against the defendants H. L. Briggs and Blanche A. Briggs for nearly two thousand dollars. Execution issued thereon, and the defendant L. O. Bliss was garnished, as a supposed debtor of Blanche A. Briggs. The garnishee answered before the commissioner that he was not indebted to the defendant, but disclosed that, as one of the trustees appointed by the will of William Wilde, 614 deceased, he held in his possession property of the value of over sixteen thousand dollars, in trust for Blanche A. Briggs, formerly Wilde. Blanche A. Briggs was a daughter of William Wilde, now deceased; that he held said property by virtue of the provisions of the will of the deceased. After making certain devises to other members of his family the testator's will provides:

"4. To my daughter, Ada Blanche Wilde, I give, devise, and bequeath the undivided one-fourth of the north thirty feet of lot 77, in the city of Dubuque, Iowa; also the sum of thirteen thousand three hundred dollars, in bills receivable and accounts, subject to the provisions of paragraph 7 of this will." Paragraph 7 is as follows:

"7. I hereby name and appoint my brother, Richard Wilde, my wife, Mary R. Wilde, and my friend, L. O. Bliss, trustees, without bond, to receive, manage, and control the property and funds hereby bequeathed and devised to my said daugh. ter, Ada Blanche Wilde, hereby giving them full power to take possession of said property, both real and personal; to collect the rents from said real estate; to invest the moneys and credits in good, safe, interest-bearing securities; and in every way to care for and preserve the fund set apart to my said daughter in such manner as to them shall seem wise and prudent, applying the income and increase thereof to her support, comfort, and education, so far as shall be required for such purposes. The trust hereby created shall be held and construed as a limitation upon the title and interest vested in my said daughter by the fourth paragraph

of this will, and the same shall continue until, in the judgment of said trustees, she shall have become fully competent and worthy to be intrusted with the sole care and power of control of said property and funds, or until she shall be married to some competent and worthy man. In 615 either case, when they are satisfied that said devise and bequest will be safely and prudently cared for and preserved, they may surrender all trust funds and property to my said daughter, and the title shall then vest absolutely in her." A copy of the will was attached to the answer. The plaintiff moved for judgment against the garnishee on his answer. The court overruled the motion, found that the garnishee was not indebted to either of the defendants, and discharged him, to which the plaintiff excepted.

1. If, by the terms of the will of the deceased, Ada Blanche Wilde took the legal title, as well as the beneficial use, of the property, both real and personal, then it necessarily follows that she had power to dispose of it, as the power to alienate is one of the incidents of an absolute gift and of an estate in fee. If such an estate vested in her, her power to alienate it could not be limited, as such limitation would be inconsistent with the enjoyment of the estate granted. The plaintiff insists that such is the effect of the provisions of the will which we have quoted. If his contention is correct, then the property in the hands of Bliss was subject to the plaintiff's garnishment: McCleary v. Ellis, 54 Iowa, 316; 37 Am. Rep. 205; McCormick Harvesting Machine Co. v. Gates, 75 Iowa, 344; 1 Perry on Trusts, secs. 386, 386 a, 386 b; Deering v. Tucker, 55 Me. 284; Keyser's Appeal, 57 Pa. St. 236. It becomes important, then, to determine whether the will in question vests an absolute title to the property in Ada Blanche Wilde.

The fourth provision expressly says that the gift and devise therein made are subject to the provisions of paragraph 7. That paragraph creates a trust, names the trustees, vests in them absolute authority to take possession of all the property, collect the rents, 616 invest the moneys, and pay over to the daughter, not a sum certain, but the "income and increase," so far as may be required for certain purposes. It then expressly provides that the trust created shall be held and construed as a limitation upon the title and interest vested in the daughter under the fourth clause of the will. It closes with a provision that when the trust fund and prop