ed., *1144, note; Doe v. Shotter, 8 Ad. & E. 905; Patton v. Crow, 26 Ala. 431; Shelton v. Homer, 5 Met. 462; Jameson v. Smith, 4 Bibb. (Ky.), 307; Wooldridge v. Watkins, 3 Bibb. 350; Peck v. Henderson, 7 Yerg. 18; Greenough v. Welles, 10 Cush. 571-76; Manice v. Manice, 43 N. Y. 368; De Kay v. Irving, 5 Denio, 653; Peter v. Beverly, 10 Pet. 532, 565; Osgood v. Franklin, 2 Johns. Ch. 19; 7 Am. Dec. 513; Schroeder v. Wilcox, 39 Neb. 136; Jackson v. Schauber, 7 Cow. 193; Bergen v. Bennett, 1 Caines Cas. 15; 2 Am. Dec. 281; Hunt v. Rousmanier, 8 Wheat. 203, 205; Hawley v. Smith, 45 Ind. 206; Frink v. Roe, 70 Cal. 310.)

Sidney V. Smith, for Respondents.

The facts surrounding the deed show that it was intended as an execution of the power as well as the conveyance of the interest of Mrs. Crooks. (Blagge v. Miles, 1 Story, 426, 446; Crane v. Morris, 6 Pet. 619; Funk v. Eggleston, 92 Ill. 515; 34 Am. Rep. 136; Amory v. Meredith, 7 Allen, 397; Sewall v. Wilmer, 132 Mass. 131; An drews v. Brumfield, 32 Miss. 107; South v. South, 91 Ind. 221; 46 Am. Rep. 591; Ladd v. Chase, 155 Mass. 420; Campbell v. Johnson, 65 Mo. 439; Baird v. Boucher, 60 Miss. 326; Hall v. Preble, 68 Me. 100; Moody v. Tedder, 16 S. C. 557; Bishop v. Remple, 11 Ohio St. 277; Gindrat v. Montgomery Gas Light Co., 82 Ala. 596; 60 Am. Rep. 769; White v. Hicks, 33 N. Y. 383; Hutton v. Benkard, 92 N. Y. 301.)

BRITT, C.-Matthew Crooks died in the month of February, 1879, being then the owner of property amounting to seven hundred and fifty thousand dollars, or thereabouts, in value, and consisting mainly of real estate in Marin and other counties of this state. He had at that time about two thousand five hundred acres in the county named, including two certain parcels of salt marsh and tide lands containing together fifteen and twenty-one one-hundredths 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 onehalf interest in said fifteen and twenty-one one-hundredths 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 an olographic 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 may 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 beforementioned 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, sec. 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 eighteenth day of December, 1879, made a decree of partial distribution of the 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 remaining 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 action were included among the tracts described in said decree.

On April 21, 1884, said Susan Crooks executed to James M. Donahue two certain deeds, each purporting to "grant, bargain, sell, and convey" to said Donahue, his heirs and assigns forever, one of the parcels of land, respectively, in which the plaintiffs assert an interest here. Such deeds were signed and acknowledged by Mrs. Crooks in her individual name, no reference being made in them to her capacity of executrix or trustee, or to the power of sale. The two deeds were substantially identical in form, differing as to the premises described. The sale was not reported to the superior court, nor was any confirmation of the same asked or obtained. Donahue paid to Mrs. Crooks for such land at the time of the execution of said deeds the sum of four thousand dollars. Such title as he then acquired has passed to and is now vested in the defendant the San Francisco & North Pacific Railway Company, which has apparently succeeded to the interests of the other defendant companies. Since the execution of said deeds Donahue and the successive railroad companies claiming under him have had actual possession of the lands, and erected thereon, as the court found, "expensive and valuable improvements of a permanent character partaking of the realty." Some other facts attending the execution of said deeds will be stated in connection with our views of the intent of the grantor. It was alleged in the complaint that Susan Crooks refused to join in the action as plaintiff, and she was therefore

made a party defendant. She filed an answer admitting all the allegations of the complaint.

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 land," and that "full power and authority 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 of the Code of Civil Procedure, 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 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

CVII. Cal.-38