ecuted the deed, had sufficient evidence of such fact, based upon an affidavit, etc. The court sustained the objection, and the ruling is assigned as error. The notice of redemption, as above stated, was served by posting upon the property on the 16th day of February, 1891. At that time section 3785 of the Political Code (which was thereafter, and on the 19th day of March, 1891, amended) required the purchaser of property sold for delinquent taxes, or his assignee, 30 days before applying for a deed, to "serve upon the owner of the property purchased, or upon the person occupying the property, if said property is occupied, a written notice, stating," etc. "In the case of unoccupied property a similar notice shall be posted in a conspicuous place upon the property at least thirty days before the purchaser applies for a deed, and no deed of the property sold at delinquent tax sale shall be issued by the tax collector, or any other officer, to the purchaser of such property until after such purchaser shall have filed with such tax collector, or other officer, an affidavit showing that the notice hereinbefore required to be given has been given as herein required, which said affidavit shall be filed and preserved by the tax collector as other files, papers and records kept by him in his office." It will be observed from the foregoing statute (1) that the notice must be served upon the owner of the property, or the person occupying it, in all cases, except where the premises are unoccupied, in which case it may, be served by posting upon the property; (2) that the tax collector has no authority to issue & leed for property sold until the affidavit is filed showing that the notice "has been given s herein required." Proof of two things are requisite to authorize the tax collector to issue his deed in such a case: (1) The fact of posting the notice on the property; and (2) the fact that the premises are unoccupied. Every fact stated in the affidavit of S. W Payne may have been true, and yet the prem ises may have been occupied, in which evem the posting would have been of no avail. The tax collector had no authority to issue the leed until he was supplied by affidavit with the proof of notice given as by the statute provided, and, as the affidavit in question failed to show that such notice was given, he was without authority to issue the deed. His power Pomes, not alone from the existence of the facts, but from the proof of their existence, made in the manner specified in the statute, and the mode becomes the measure of his power. Service of notice in such cases by posting upon the premises constitutes an exception to the rule of the statute requiring personal notice, and he who would avail himself thereof must establish by proof the facts bringing the case within the exception. Appellants' counsel aver in their brief that it was conceded at the trial "by respondents, In the stipulations herein filed, that the real property in controversy was vacant and un occupied property on the 16th day of February, 1891,-the time when the purchaser thereof at the delinquent tax sale posted his notice to redeem in a conspicuous place thereon." We fail to find any such admission in the record. In Clarke v. Meade, 102 Cal. 516, 36 Pac. 862, the point made here in reference to the affidavit was not, so far as appears, made, considered, or decided. A witness in that case testified, without objection, so far as appears, that the land was vacant and unoccupied, and that he posted the notice thereon. The opinion shows also that the notice and affidavit were in evidence, and holds that the notice contained the matters required by section 3785 of the Political Code; but no point was made, so far as appears, as to the sufficiency of the affidavit. Its contents do not appear, and no comment is made thereon by the court. The deed in the present case did contain a recital that the purchaser at the tax sale had filed an affidavit "showing that the above described property is unoccupied, and that notice has been given," etc. This we may concede to be prima facie evidence of the facts stated therein, but the presumption arising therefrom is rebutted by the affidavit, from which it appears that it did not show anything of the kind. There was therefore no error in the ruling of the court excluding the parol evidence offered by the plaintiff to show that the property was vacant and unoccupied. As the error cousidered involves the validity of the tax deed, which is deemed void for want of a sufficient predicate to warrant its issue, the other errors assigned need not be considered. The order appealed from should be affirmed. We concur: VANCLIEF, C.; HAYNES, C. PER CURIAM. For the reasons given in the foregoing opinion, the order appealed from is affirmed. (107 Cal. 587) MORFFEW et al. v. SAN FRANCISCO & S. 1. A testator devised his half interest in the real property of the community estate to his wife, in trust for their children, subject to a life estate in herself, the expenses of the estate to be paid out of the income, and final distribution to be made on death of the widow, and after the youngest child attained its majority; none of the productive property to be sold before final distribution, and the executors to have power to sell, in their discretion, the unimproved lands; the proceeds of such sales to "be divided among the heirs as before directed." The widow qualified as executrix, and under a partial distribution took her half interest in the lands in fee, and a life estate in the other half, under the will. that, after the partial distribution, the widow had a power of sale as to the remainder in the unimproved lands as trustee, and not as executrix, Held and hence a sale thereunder need not be confirmed by the court as provided by Code Civ. Proc. 1561, in the case of sales of property made by direction of a will. 2. Where one by the express provisions of a will takes a life estate in land, with limitation over, and is also given a trustee's power of sale of the land, to be exercised at his discretion, the life estate is not enlarged to a fee by the granting of the power. 3. Where one given a trustee's naked power of sale of land by a will executes a deed of the land, the situation and circumstances under which it was executed are admissible to show that such deed was intended as an execution of the power of sale; Code Civ. Proc. § 1860, providing that the circumstances under which an instrument was executed may be considered in its construction. 4. A widow, advanced in years, holding a life estate in a tract of land, with a trustee's naked power of sale as to the remainder, conveyed the land to the agent of a railroad by a deed which failed to show an execution of the trustee's power of sale. When the deed was executed, an action by the railroad for condemnation of the land for use for railroad purposes had been properly commenced against the widow and heirs, and the widow knew that the grantee was agent for this railroad company, that the railroad was being built, and that a station was to be established on the property in question. Held, that the widow intended to execute her trustee's power of sale as to the remainder. 5. Civ. Code, § 863, providing that an express trust vests the whole estate in the trustee, and that the beneficiaries take no estate or interest in the property, does not prevent one with a life estate in land from having a trustee's naked power of sale as to the remainder. Commissioners' decision. Department 2. Appeal from superior court, Marin county; E. B. Mahon, Judge. Action by Margaret J. Morffew and others against the San Francisco & San Rafael Railroad Company and others for the possession of land. From a judgment for defendants, and an order denying a new trial, plaintiffs appeal. Affirmed. Mich. Mullany and Wm. Grant, for appellants. Chas. F. Hanlon and Constantine E. A. Foerster, for respondents. BRITT, C. Matthew Crooks died in the month of February, 1879, being then the owner of property amounting to $750,000 or thereabouts in value, and consisting mainly of real estate in Marin and other counties of this state. He had at that time about 2,500 acres in the county named, including two certain parcels of salt marsh and tide lands, containing together 15.21 acres, which marsh and tide land was unproductive and unimproved. Decedent left a widow, Susan Crooks, who yet survives, and the whole estate was community property. Plaintiffs are the children of said Matthew Crooks and his said wife, and claim, under the provisions of his will below stated, to be the owners as tenants in common of an undivided one-half interest in said 15.21 acres of land. They prosecute this action to quiet their alleged title to the same, though in the argument it is admitted by their counsel that their assumed interest is subject to a precedent estate vested in one of the defendants during the life of their said mother. Those of the defendants who resist the action deny that the plaintiffs have any interest in the lands, and claim that the defendant the San Francisco & North Pacific Railway Company is the owner of the whole thereof. The court below was of this opinion, and rendered judgment that the plaintiffs take nothing; from which judgment, and an order denying their motion for a new trial, the plaintiffs appeal. Said deceased left a holographic will, of which the portions material to the present controversy are as follows: "I bequeath all my property, both real and personal, to my beloved wife, Susan Crooks, in trust for our children [naming them, there being ten in all], subject to the following conditions: That out of the income of the estate my wife, before mentioned, will pay all taxes and assessments, all just debts and current expenses, as they become due, maintain and educate our before-mentioned children; that she will pay, after my decease, the sum of $5,000 in gold coin to those of the before-mentioned children who attain the age of twenty-one years. It is my wish and desire that none of my property be sold or disposed of in any other way than by lease until my youngest surviving child shall be twenty-one years of age. It is my wish and desire that my wife, Susan Crooks, shall have control of my estate, as well as the income derived from it, during her natural life, and, in case of her death or disability to manage the estate, then I appoint the majority of the surviving heirs who have attained the age of twenty-one years to carry out the trust herein set forth. And it is my desire and will that on the death of my wife, Susan Crooks, and after my youngest surviving child shall have attained the age of twenty-one years, that the estate shall be divided among the surviving heirs share and share alike. Should it be desirable by a majority of my executors herein appointed to sell a part of the unproductive estate hereby granted before the final distribution of the same, I desire that the proceeds be divided among the surviving heirs as before directed; but none of the improved or productive property shall be sold before final distribution of the same, and it is my will and desire that the before-mentioned executors shall carry out the provisions of this will without the giving of bonds or the interference or intervention of any court." No person was in direct terms appointed executor of the will, but (in accordance, we suppose, with the testator's apparent intent,-Civ. Code § 1371) letters testamentary thereon were in March, 1879, issued to Susan Crooks, the surviving widow, by the probate court of the city and county of San Francisco, in which court the will was admitted to probate. Two of the children of said deceased were yet minors at the time of the commencement of this action, February 18, 1889. Upon the petition of the executrix, said probate court, on the 18th day of December, 1879, made a decree of partial distribution of the | land," and that "full power and authority estate of said deceased, containing, among other directions, the following: "That there be and is hereby distributed to her [said Susan] one undivided one-half of the property and tracts of land hereinafter described, to be held by her in her own right, being the one-half thereof belonging to her as common property of the community of the said Matthew Crooks and herself, and the remainng half, for the term of her natural life, upon the trusts declared in the will of said Matthew Crooks, deceased, as construed by this court as follows: To pay from the income as it accrues, after maintaining, supporting and educating the children of the said decedent, as directed by said will, the legacies mentioned in said will as follows: [Naming the children and the amount to be paid to each], as they shall respectively arrive at the age of twenty-one years, and for the other purposes designated in the will of the said Matthew Crooks, reference to which for that purpose is hereby made." The lands involved in this The action were included among the tracts de- 1. Susan Crooks was, of course, the owner of an undivided one-half of the land, and the judge who tried the case was of the opinion that in virtue of the will and the decree of distribution she held the other "one-half in trust for purpose of sale as to unimproved was specially delegated to her to sell the unimproved lands and premises as should seem desirable to her." Appellants, however, insist that no trust for the sale of lands is created by the will (and this is conceded by respondents); that the power of sale, such as it is, given to the widow, is conferred upon her as executrix, and not as trustee; that this was a naked power, not coupled with an interest; and hence, under section 1561, Code Civ. Proc., no title passed to Donahue, because the sale to him was not confirmed by the court having probate jurisdiction of the estate of Matthew Crooks. Counsel agree that the will created a trust to receive the rents and profits of the one-half interest subject to Matthew Crooks' testamentary disposal, and to apply the same as in the will directed; and we are of the opinion that the widow took a life estate in such one-half of all the lands upon the trusts created by the will, with an added power of sale-exercisable in her discretion-of the unproductive estate. In our opinion, also, the power of sale is given to Mrs. Crooks as trustee, and not as executrix, during her life and ability to act. It will be observed that the testator provided that the proceeds of sale should "be divided among the surviving heirs as before directed," thus requiring that such proceeds should be held for final apportionment among the heirs who should survive the period of distribution in the same manner as the unproductive land itself would be held in default of the execution of the power. The money to be derived from the sale is not to be used to pay expenses, or even legacies, or for any purpose which might be expected to arise in the performance of the duties of an executor. It seems to have been the intention of the testator that the corpus of the estate should be preserved as nearly as possible intact until the specified time for distribution should arrive, and to create a trust for the purpose of such preservation with an ordained succession of trustees, permitting, however, a sale of unproductive property if found desirable. As said in a case not wholly dissimilar to the present: "Under such circumstances the person named as executor takes not as executor, but as the donee of a power in his character as trustee." Bolton v. Jacks, 6 Rob. (N. Y.) 228. And see Denne v. Judge, 11 East, 288; Newton v. Bronson, 13 N. Y. 593. To such a person the property which is the subject of the trust is well delivered upon distribution of the estate. Barker v. Stanford, 53 Cal. 451; Robinson v. Tickell, 8 Ves. 142; Cooper v. Thornton, 3 Brown, Ch. 96, 186. Those were cases of pecuniary legacies, but under our system there can be no essential difference in this regard between the course to be taken by the real estate and that by the personal property of the decedent. Code Civ. Proc. §§ 1452, 1453, 1658, 1665. The lands thus delivered into the hands of Mrs. Crooks as trustee ceased to be part of the estate in the course of administration, and the probate court, and its successor, the superior court, in the exercise of probate jurisdiction, had no further control of the same. Barker v. Stanford, 53 Cal. 451; Wheeler v. Bolton, 54 Cal. 305; Buckley v. Superior Court, 102 Cal. 6, 36 Pac. 360. The clrcumstance that at a future time there is to be a division of the property among the remainder-men, beneficiaries of the trust, does not, it seems, affect the rule. In re Thompson's Estate, 101 Cal. 351, 353, 35 Pac. 991, and 36 Pac. 98, 508. It was within the province of the probate court to determine whether a valid trust had been created, but the power to regulate and direct its subsequent administration lay with the court possessed of general equity jurisdiction. In re Hinckley's Estate, 58 Cal. 518; In re Thompson's Estate, supra. (It will be noted that the decree of distribution here was made several years before the enactment of sections 1699–1703, Code Civ. Proc., conferring a limited jurisdiction over testamentary trustees on the probate side of the superior court.) It seems clear that after the decree of distribution, if not before, the widow held the power of sale as trustee, and not as executrix; and that section 1561, Code Civ. Proc., has no application to the sale made to Donahue, and no confirmation by the court was required, or indeed authorized, by law; and this view, while not restricting the statute in its proper scope, allows effect to the intention of the testator that the provisions of his will shall be executed without the intervention of any court. greater than for her life. So that there is no enlargement of her life estate to be implied from the necessities of the trust; and, the life estate in the trustee being created by express words in the will, with limitation over, it is not enlarged to a fee by the power of sale. Kennedy v. Kennedy, 159 Pa. St. 327, 28 Atl. 241; Foos v. Scarf, 55 Md. 310, and numerous authorities cited; Payne v. Johnson's Ex'rs, 95 Ky. 183, 184, 24 S. W. 238, 609; Hatfield v. Sohier, 114 Mass. 48. It is suggested by respondents that the trustee took the fee in virtue of the provision of section 863, Civ. Code. But, as said of a like statute by the court of appeals of New York: "This section does not prevent a valid limitation of a remainder to the beneficiaries of a trust to take effect upon its termination. The declaration that a valid express trust shall vest the whole estate in the trustees, and that the beneficiaries shall take no estate or interest in the land, clearly. refers, as the subsequent section shows, to the trust estate, and not to an interest in the land not embraced in the trust." Stevenson v. Lesley, 70 N. Y. 516, 517. So here we think that said section 863 has application only to the particular estate in trust, and not to the remainder in the plaintiffs. In any aspect of the case, we conclude that the power of sale of this land in the hands of Susan Crooks was, as to the remainder after the termination of her life estate, a naked power to sell such remainder, and, as a consequence, that the efficacy of her deeds to pass more than an estate for her life depends upon their validity as an execution of such a power. Her authority is well illustrated by the case of Bloomer v. Waldron, 3 Hill, 361, where it was said that the deed of persons occupying a relation to the title similar to that of Mrs. Crooks here "would carry their life estates, but on any interest beyond that their deed could stand on their power of sale only, independent of their life estates." Id. 365. Accordingly it is contended strenuous 2. It is claimed by respondent that Mrs. Crooks had not merely the life estate, but the fee, in trust; and that, a power of sale being added, she had thus a power coupled with an interest in the fee. If this is so, then the case requires no further consideration, for upon that assumption her deeds were doubtless sufficient to pass the title. But the quantity of interest which passes to the trustee in case of an express trust is commensurately by appellants' learned counsel that, since with the necessities of his office. The trustee shall have an estate in fee, if that is necessary to enable him to perform the duties imposed upon him, although it is not in terms given to him by the instrument creating the trust. On this principle a devise of lands in trust to sell clothes the trustee with the fee, because necessary to the execution of the trust; the rule being compendiously stated that the trustee "will take an estate adequate to the execution of the trust; no more nor less." Perry, Trusts, § 320; Young v. Bradley, 101 U. S. 787. In the present case there is no trust for the purpose of sale, for trusts are always imperative (Kidwell v. Brummagim, 32 Cal. 443); and here the power to sell is by the terms of the will left wholly discretionary (Civ. Code, §§ 847, 857; Cooke v. Platt, 98 N. Y. 35). And the will does not impose upon the widow any other duty which requires for its discharge an estate the land Mrs. Crooks owned in her individual right an speaking of the same subject, some years later: "It is impossible not to be struck with the number of instances where the intention has been defeated by the rule distinguishing power from property. The statute [1 Vict. c. 26, § 27, much like section 1330 of our Civil Code in its effect] now executes the supposed intention in every case of a general disposition by will when the testator has & general power. But in other cases the rule of law is to prevail. The mischief has been increased by the courts in some recent instances adopting a strict construction, with a view to establish a certain rule." 1 Sugd. Powers, 401. Of a doctrine evoking such criticism from such sources it may be suspected, as remarked by the supreme court of Illinois, that it "has been pressed beyond its legitimate domain by at least some of the adjudicated cases." Funk v. Eggleston, 92 Ill. 535. It is supposed to rest upon the case of Sir Edward Clere, 6 Coke, 17. In Blagge v. Miles, 1 Story, 426, Fed. Cas. No. 1,479, which is the leading American authority. Judge Story said of Clere's Case: "It affords a strong illustration of the true doctrine. In that case it was held that the power was est and a power existing together in the same person, over the same subject, and an act be done without a particular reference to the power, it will be applied to the interest, and not to the power. If there be any legal interest on which the deed can attach, it will not execute the power." 4 Comm. 334. The subject is treated at length in 1 Sugd. Powers, c. 6, § 7. Instances of the operation of the rule may be found in a number of American cases cited by appellants. Cotting v. De Sartiges, 17 R. I. 668, 24 Atl. 530; Bilderback v. Boyce, 14 S. C. 528; Hollister v. Shaw, 46 Conn. 248; Patterson v. Wilson, 64 Md. 196, 1 Atl. 68; Insurance Co. v. Shipman, 119 N. Y. 324, 24 N. E. 177; and others. "The donee of a power may execute it without referring to it, or taking the slightest notice of it, provided that the intention to execute it appear." 1 Sugd. Powers, 356. The .question is as to the evidence by which the intention must appear. Lord Chancellor Thurlow said in one case: "You must not go out of the instrument itself to gather the construction of it." Andrews v. Emmot, 2 Brown, Ch. 303. Appellants hardly press their contention so far. As we understand their argument, they deduce the conclusion-well executed, notwithstanding it was not reit may be correctly-from the authorities they cite that in no case where the power is not coupled with an interest is the power to be deemed executed, unless (1) there is some reference to the power in the instrument of execution; or (2) there is a reference to the property which is the specific subject-matter on which the power must operate (in this case the fee after the termination of the trust estate); or (3) the instrument would be wholly inoperative if not held to be an execution of the power; and that no evidence of matters extraneous to the deeds here can be considered to demonstrate the intent of Mrs. Crooks to execute the power, except it show that the case falls within one of the three categories thus enumerated. Of course such a rule leaves little room for interpretation in the light of facts not apparent on the face of the instrument. It was said in Roake v. Denn that: "There is not one instance in which the power of appointment is held to have been executed by a will unless there is a reference in the will either to the power or to the property which is the subject of it, or unless the instrument be wholly inoperative without supposing the execution of a power. It has been argued that this is a question of intention, and so it is; but then there are rules by which the intention is to be collected, and it would be dangerous to leave a question of this kind to loose and vague conjecture." 1 Dow & C. 448, 449. But it was remarked by Lord Wynford, in delivering his opinion in the same case: "I agree that there are certain rules by which the intention is to be collected, but I think they are bad rules, and I hope they will not long continue to be binding on the judges." And Sugden observes, ferred to, because otherwise the devise in the will would be inoperative and void." Such "true doctrine," as declared by Judge Story, is this: "If the donee of the power intends to execute, and the mode be in other respects unexceptionable, that intention, however manifested, whether directly or indirectly, positively or by just implication, will make the execution valid and operative. I agree that the intention to execute must be apparent and clear, so that the transac tion is not fairly susceptible of any other interpretation. If it be doubtful under all the circumstances, then that doubt will prevent it from being deemed an execution of the power. All the authorities agree that it is not necessary that the intention to execute the power should appear by express terms or recitals in the instrument." He adds: "It is sufficient that it shall appear by words, acts, or deeds demonstrating the intention." Blagge v. Miles, 1 Story, 446, Fed. Cas. Nc. 1.479. Following this case are many deci sions applying, and some of them enlarging, the principle thus stated. In Funk v. Eg gleston, 92 Ill. 515, the subject of the power being real estate, and the question being as to the execution of the power by a will, the court held that, in order to arrive at the intention of the testator, the facts in the case dehors the will-such as the very small quantity of land involved, the circumstance that the same must be distributed among more than 200 heirs of the donor of the power, if the power was not intended to be executed, the lack of property to satisfy certain legacies, except by exercise of the power-as well as all the provisions of the will itself would be considered; and if these indicate an intention to pass the whole estate, the devise |