that the trust was vold and that the decedent after provided all of my real estate upon died intestate as to the residue, and thereupon distributed the estate to her legal heirs. From this order the persons named as trustees appeal in case numbered 9177, and Eugenie H. Schroeder, a sister of decedent and a beneficiary of the trust, appeals separately upon the record presented in case numbered 9210.

such terms as to them may seem best, and until the accumulation of the fund hereinafter provided." The rentals and the income from all other sources were to be used to pay annuities, monthly, as follows: To Mrs. Lord and Mrs. Schroeder, her sisters, each the sum of $300; to Edward T. McLean, a brother, and his wife, jointly, $100; to her sister, Mrs. Swasey, and her brother Alfred, each $100. These annuities were to be continued only until the $240,000 fund should be accumulated from the proceeds of sales. With regard to this accumulation the clause then provides as follows:

The general plan of the trust is that the trustees shall sell the property devised to them and pay the proceeds to certain beneficiaries. The first sales are to be applied to create a fund of $240,000, the income of which is to be paid to beneficiaries named, during their lives, and, upon death, to other persons designated. Out of the remainder is to be paid certain sums to designated bene-judgment be profitably made, to sell sufficient ficiaries in the order named, amounting in all to $280,600. Any of the fund remaining after the payment of these sums was to be paid to two sisters and a nephew of the

testatrix.

The respondents' claim is that the will creates an unlawful restraint of alienation, a restraint forbidden by sections 715 and 716 of the Civil Code. Section 715 forbids the suspension of the absolute power of alienation by any limitation or condition, for a period longer than the continuation of the lives of persons in being at the creation of the limitation or condition. Section 716 provides that, if any future interest created operates to suspend the power of alienation as provided in section 715, it is void in its creation, and that such power of alienation is suspended when there are no persons in being by whom an absolute interest in possession can be conveyed. The date of the death of the testatrix is deemed to be the time of the creation of the limitation upon alienation, if any was created. Civ. Code, § 749. The testatrix died in 1916, so the amendment of 1917 (St. 1917, p. 699) to section 715 does not apply. We have stated its effect as it stood before that amendment.

[1, 2] In considering the effect of the will it is necessary to bear in mind certain wellestablished rules of construction. The will must be given effect in accordance with the intention of the testator, as found from the language of the will, where it is clear, and, if it is ambiguous, from the language of the will aided by such extrinsic facts as may be admissible for that purpose. A will must be given an interpretation which will make it operative, rather than one which will render it inoperative, and an interpretation by which it disposes of the property dealt with is to be preferred to one which creates an intestacy. In order to explain the questions presented, it is necessary to set forth at some length the provisions of the trust clause of the will.

The trust clause first directed that the trustees should "lease until sold as herein

"I direct my executors and trustees from time to time as sales of my estate may in their

estate to yield a fund of two hundred and forty thousand dollars, and pending the accumulation of said fund, I direct my said executors and trustees to invest and keep invested such sums as may be derived from such sales, and to use the income in the payment of the above annuities. As soon as a fund of two hundred and forty thousand dollars has been accumulated, the same shall be invested and kept invested, and out of the net income derived therefrom there shall be paid to said annuitants monthly during their respective lives, in lieu of the annuities above provided, portions of said income as follows:

"(1) To my sister Virginia A. Lord threeeighths thereof. (2) To my sister Eugenie H. Schroeder three-eighths thereof. (3) To my brother Edward T. McLean and to his wife Mattie McLean jointly and to the survivor of Amanda A. Swasey one-twelfth thereof. (5) them one-twelfth thereof. (4) To my sister To my brother Alfred A. McLean one-twelfth thereof.

"In the event that any of my said sisters and brothers shall not be living at the time that said fund has been accumulated, or if then living shall afterward die, I direct my executors and trustees to pay out of said fund as fol

lows."

It then directed that upon the death of Mrs. Lord three-eighths of the fund, or $90,000, should be paid to her heirs, and that upon the death of Mrs. Schroeder a like amount should be paid to her heirs. Upon the death of the survivor of Edward T. and Mattie McLean, $20,000 was to go in equal shares to the children then living, of said persons. Upon the death of Mrs. Swasey $20,000 was to go to the children of said sister then living. Upon the death of Alfred A. McLean, $20,000 was to go as follows: Five thousand dollars to Minnie McLean, his wife, if she were living, otherwise to the children of said Alfred A. McLean and his wife, then living, and $15,000 in equal shares to said children then living.

With respect to the excess above $240,000 the clause provided:

"From time to time as sales of my estate may in the judgment of my executors and trustees be profitably made, I direct my executors

(190 P.)

and trustees to convert my estate into cash, and after devoting sufficient of the proceeds thereof to the purposes specified in paragraph A of this article, to pay in the order named to the persons hereinafter named or to their heirs, in case of their death, except where otherwise provided, the sums set opposite their respective names."

Then follows a list of the beneficiaries and the amounts of the gifts amounting to the sum of $280,600, above mentioned. With respect to the remainder the provision is as follows:

"The remainder of my estate, exclusive of that described in the sixth and seventh articles hereof, shall be divided into three equal parts. One part thereof shall be paid to my sister Virginia A. Lord, if living, or to her heirs if dead; one part thereof to my sister Eugenie H. Schroeder, if living, or to her heirs if dead, and one part thereof to my nephew W. F. Chipman, if living, or to his heirs if dead." The final paragraph of the trust clause is

as follows:

"Although it is my intention to have all of my estate, with the exceptions already stated, converted into cash, I desire that my executors and trustees shall make sales with the sole object that my two sisters and my nephew above mentioned shall receive substantial sums out of the remainder of my estate. My estate at present valuations is ample for that purpose, and I do not wish it sacrificed to satisfy the importunities of those who, while dear to me, are not the first in my affections."

the $240,000 fund, the payment of the specific legacies, and the payment of any residue to the residuary legatees. It includes and provides for the sales to accumulate the first fund as well as the other funds necessary to carry out the desires of the testatrix, as expressed in the succeeding provisions. In such a case the "property and all its proceeds must be deemed personal property from the time of the testator's death." Civ. Code, § 1338.

[4] A devise to trustees, with directions to sell for the purpose of converting the estate into money to be applied in carrying out further trusts created in the proceeds and with power to sell immediately, does not occasion an unlawful suspension of the power of alienation, and "this is equally true where a future date is fixed for the exercise of the power if the donees are permitted to sell in the meantime in their discretion." Chap

lin on Suspension, § 287. This was said by the learned author in discussing the effect of "powers in trust" authorized by the New York law on the subject. These provisions, in part at least, were originally carried into our Civil Code as section 860 and as sections 878 to 940, and they were all repealed in 1874. But the rule above, stated does not depend on statutory provisions allowing the creation of "powers in trust to convey" and the like, but is founded on the fact stated by the author in the same section that, by the very terms of such a power, "there are persons in being who can convey absolutely." The rule is well settled in New York. Stew

Corning, 89 N. Y. 236; Van Veghten v. Van Veghten, 8 Paige, Ch. 104, 122; Underwood v. Curtiss, 52 Hun, 613, 5 N. Y. Supp. 478. In this state the same rule prevails. Estate of Heberle, 155 Cal. 723, 102 Pac. 735. In Stewart v. Hamilton the trustees were given power to sell, with the proviso:

"I enjoin my executors not to sell any of the real estate under three years, unless sold to advantage; sold on time to advantage."

The part of the fifth clause relating to the annuities and the $240,000 fund is designated therein by the letter "A." The suc-art v. Hamilton, 37 Hun, 19; Roberts v. ceeding part is designated by the letter "B." The fifth clause of the will creates five separate and distinct trusts: (1) The trust to convert the entire estate into money. (2) The provisional trust for the payment of the temporary annuities to the brothers and sisters until such time as the fund of $240,000 shall have been accumulated. (3) The trust in the fund consisting of the first $240,000 received from sales of the property, of which the income is to be divided between the brothers and sisters during their respective lives and upon their deaths, respectively, the remainder is to be given absolutely, in the same proportions, to their respective heirs or children. (4) The trust to pay the specific legacies amounting to $280,600. (5) The trust in the ultimate residue, if any, of the proceeds, which is to go to Mrs. Lord, Mrs. Schroeder, and W. F. Chipman. We will defer the discussion of the trust for the payment of the annuities until after our consideration of the other four trusts.

[3] The direction at the beginning of part B of the fifth clause applies to the whole of the trust property and is a direction for its conversion into money and the application of the proceeds to the three main objects of the testatrix, namely, the disposition of

It was held that, since the power to sell' could be exercised at any time and was entirely in the discretion of the trustees, there was no unlawful suspension of the power of alienation. A similar cautionary injunction was given in Estate of Heberle, supra, and the conclusion was the same. See, also, Hagen v. Sacrison, 19 N. D. 160, 123 N. W. 518, 26 L. R. A. (N. S.) 724, and note. It is therefore clear that the terms of the directions for the sale of the property are valid and that they do not transgress the sections of the Code on the subject of suspension of the power of alienation.

[5] Concerning the fourth and fifth trusts above enumerated, those relating to the specific legacies and the ultimate residue after payment thereof, little need be said. Neither

est is not contingent under section 695, but is vested as provided in section 694.

the payment of the specific legacies nor of the ultimate residue is dependent upon any event except the making of sales for sums [7] This is also indicated by the language sufficient to realize the necessary amount of of the gift of the remainder to the children, money. The right to the legacies, both in connection with the context. The payment specific and residuary, vested immediately to them, it is true, is to be made "out of upon the death of the testatrix and were subject to alienation by the legatees at any time thereafter. They are not different in that respect from any other legacy that is dependent upon the amount of the estate from which they are to come. The terms of the will regarding them do not suspend the power of alienation.

the fund," and it might be contended that this indicates an intent that no title to the remainder was to vest until the fund should be on hand. But the terms of the gift also declare that the payment is to be made "upon the death of my sister Amanda A. Swasey," and the provision for the payment of the income from the fund states that the respective [6] We are also of the opinion that the pro- shares thereof are to be paid to the recipients visions of part A relating to the third trust named "during their respective lives." These do not unlawfully suspend the power. To phrases indicate very strongly an intent that illustrate this, the share of Mrs. Swasey and the remainder in the respective shares were her children in the fund may be considered to vest in the children at the death of their alone. The testatrix died on December 5, respective parents. In a case of ambiguity 1916. Mrs. Swasey died on December 7, or inconsistency the law favors a construc1918. The $240,000 fund is not yet accumu- tion that will cause the gifts to vest, if the lated. By this part of the trust clause she opposite construction will render it void. was to have, during her life, one-twelfth of Chaplin on Suspension, §§ 178, 223, 515; the income to be derived from said fund after Gray on Perpetuities, § 633; Civil Code, it was accumulated. The direction as to the §§ 1317, 1326. We think these phrases when remainder in said one-twelfth is that if she taken together show that the testatrix inshould die prior to the accumulation, or if tended the respective sets of children to take then living should afterwards die, then, upon a vested interest in the remainder immediateher death, the trustees, "out of said fund," ly upon the death of the parent. should pay one-twelfth thereof to her children "who are then living," meaning those of her children who should be living at her death. The twelfth was to be paid to them out of the fund to be accumulated. There is no express direction that they should have anything until after the accumulation was complete. If their interest in said shares does not vest until the fund is accumulated and in the meantime they cannot alienate it absolutely, there would then be a suspension of the power of alienation of that share for a period beyond her life, and this is forbidden by section 715. But their interest vested upon her death.

The effect of this part of the clause is that

these children stand in the same position as the persons who are to take the specific legacies and the ultimate residue. They do not receive the interest until sufficient property is sold to accumulate the fund but their interest therein is now a vested interest and may be alienated as in the case of any other property. Civ. Code, §§ 1039, 1044. The enjoyment thereof is, of course, postponed until the fund is accumulated; but the postponement of the time of enjoyment of an interest does not suspend the power of alienation thereof, where no other person has in the meantime any interest in the property. Gray on Perpetuities, § 120; Chaplin on Suspension, § 394. The same conditions will arise upon the death of any of the other beneficiaries of the income of this fund, should they die prior to the accumulation. If they die subsequent thereto, the persons to take become fixed at that time and the power of alienation immediately arises at the end of the period allowed by law; that is, the termination of the life of a person in being at the death of the testatrix. Taking this part of the trust clause alone without qualification from the preceding provisions concerning annuities, it is clear that there is no unlawful suspension of the power of alienation.

[8] It is to be observed that the several trusts in the $240,000 fund are separable, and the question whether the power of alienation is suspended is to be considered with refer

See, also, Sacramento Bank v. Montgomery, 146 Cal. 747, 81 Pac. 138.

the two must stand or fall together. In such a case the part of the will which conflicts with the main scheme must give way so far as may be necessary to carry out the main scheme. The result is that the interest of the children of Mrs. Swasey in the sum of $20,000 must be deemed to have vested from her death, that they will be entitled to re ceive interest on that sum from that time until its final payment, and that the annuities to the surviving brothers and sisters must be paid out of the remaining part of the income after providing for interest on the sum due to the children of Mrs. Swasey. Similar results will follow upon the death of any other of the brothers and sisters prior to the

[9] The remaining question is whether or A perusal of the trust clause shows that not the provisions disposing of the remain- the preliminary portion providing for the anders of the $240,000 fund are affected by the nuities to the brothers and sisters temporaripreceding directions for the payment of an- ly until the accumulation of the fund was but nuities to the brothers and sisters pending the a minor part of the main scheme of the testaaccumulation of the fund. The preceding di- trix. It is temporary in character, in the rection is that the entire net income of the nature of a family allowance. It was inestate, from whatever source accruing, in- tended merely to provide an income for them cluding interest received on invested pro- during the period of the settlement of the ceeds prior to the complete accumulation of trust. The principal parts of the plan were the fund, is to be devoted to the payment of to provide the fund of $240,000, to divide these annuities, amounting in all to $900 a the income thereof among the brothers and month, and that, should the income of any sisters during their respective lives, and give month be insufficient to pay them in full, the the remainder to their children or heirs as annuities to Mrs. Lord and Mrs. Schroeder specified; to pay the specific legacies menshould be paid in full and the balance pro- tioned in the succeeding clause and to the rated among the others, but that, if after-residuary legatees the ultimate residue. The wards the income became more than sufficient, | preliminary scheme is not essential to the those who had not received the full amount main plan, nor so interwoven with it that were to have the deficit made up to them out of the surplus. It would seem to follow, therefore, that during the period preceding the accumulation of the fund the other annuitants have an interest in the share of Mrs. Swasey's children, which, under the rules above stated, would prevent the vesting of said children's interest upon the death of their mother. The net income from the entire estate is by these provisions, in effect, sequestered for application to the payment of annuities to the survivors. Having the effect to prevent the vesting of the interests in the remainders, it would involve the suspension of the power of alienation of that share for the period between the death of Mrs. Swasey and the final accumulation of the fund. The two trusts are to that extent inconsistent. It is a typical case for the ap plication of the rule stated in Nellis v. Rickard, 133 Cal. 622, 66 Pac. 32, 85 Am. St. Rep. 227, to the effect that where there are "several independent trusts, some of which are legal, while others are in contravention of the statute regulating uses and trusts or the statutes against perpetuities, the estate of the trustee will be upheld to the extent necessary to enable him to execute the valid trusts, and will only be void as to the illegal or invalid trusts." It is an application of rule stated in section 1317 of the Civil Code that where the intention of the testator cannot have effect to its full extent it must have effect as far as possible. The rule is also stated as follows:

"Where there are valid and invalid clauses in a will, the question whether the valid clauses can stand depends upon whether or not the invalid ones are so interwoven with them that they cannot be eliminated without interfering with and changing the main scheme of the testator." Estate of Pichoir, 139 Cal. 685. 73 Pac. 606, quoting from Estate of Fair, 136 Cal. 81, 68 Pac. 306.

accumulation of the fund.

Our conclusion is that the trusts created

by the will are valid and enforceable, except as above stated; that the invalid part

the trustees; and that the court below should does not destroy the devise of the residue to

have made distribution thereof to said trus

tees. The trustees will have power after such distribution to make any adjustment dren of Mrs. Swasey, or to the children rendered necessary to make up to the chilor heirs of any other brother or sister who may die before the accumulation of the fund, the amount of interest that may accrue upon their respective vested interests in the fund. The views we have expressed will be sufficient to guide them on this point in the administration of the trust. There is no disputed question of fact involved in the case. More than four years have passed since the death of the testatrix, and further delay is not necessary. It is a proper case for this court to exercise its power to direct the action of the court below.

The order of distribution is reversed, and it is ordered by this court that upon the going down of the remittitur herein the court below shall forthwith enter an order dis

tributing to the several specific devisees and [4. Criminal law 1031(5)—Objection that