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value less than fifteen hundred dollars are instances of the limi-
tations put by the legislature upon the free power of testa-
mentary disposition, and from the lack of uniformity and har-
mony in their terms these homestead provisions have presented
questions of much doubt and vexation to the courts.

The present question is one of that kind. Did the legislature
mean by section 1468 to do more than declare the ordinary rule
of succession and descent in ^** cases of intestacy, but subject
always to the right of testamentary disposition; or did it mean
that, as to separate property upon which the homestead charac-
ter had been impressed by order of court, any devise would be
void and the property must descend to the heirs?

The latter view places a limitation upon a testator's power,
and removes from the disposition of a will any property which
may chance to be selected and set apart to the widow and chil-
dren, and may thus defeat by a curious uncertainty the object of
a testator's worthy bounty. It may do more than that, as in this
case. The widow, to whom a homestead of the estimated value
of thirty thousand dollars had been set aside "during her widow-
hood" — the time in contemplation of a beneficent law during
which she may be dependent and is entitled to maintenance from
the estate of her deceased husband — ^by marrying again, while
thus cutting off any further right of homestead or maintenance,
is enabled to obtain a perfect and untrammeled fee in the prop-
erty which her husband had devised to others, and which, in the
general contemplation of the law, was to be set aside to her use
only during the limited period of her widowhood and depend-
ency. But nevertheless such an interpretation is borne out by

Digitized by


112 In BE Walkbrlt. [Cal.

the language of the statute. Upon the other hand, the f ormei
view is certainly more in accord with the apparent policy of the
law, but the language of the section before and after amendment
to its present form stands in the way of its adoption.

Where a homestead has been selected from the separate prop-
erty of a husband during his life and without his consent, it
goes upon his death to his "heirs and devisees," subject to the
power of the court to assign the same for a limited period, under
section 1265 of the Civil Code, while by section 1474 of the Code
of Civil Procedure the same property vests in "the heirs,*' sub-
ject to the same power of limited assignment in the court. It ii
not easy to see, as this court has before said, why the rule of de-
vise or descent as to a homestead ^*^* upon separate property
declared during life should differ from that which obtains in case
it be set apart after death, and it is still less easy to perceive why
the two sections last above cited should be left inharmonioug,
but nevertheless if the legislature has seen fit to prescribe differ-
ent rules it is the bounden duty of the court to give them effect.

This the court was reluctantly driven to do in Mawson v. Maw-
son, 60 Cal. 639. Section 1465 of the Code of Civil Procedure
at that time provided that the homestead on being set apart
should be the property of the surviving widow or husband, if
there were no minor children. Mawson died intestate. There
were no minor children. A homestead was set apart to the widow
out of the separate property. The deceased left two children of
a former marriage — heirs at law — and they appealed. This
court adjudged that the title vested in the widow to the exclusion
of the heirs at law. By the amendment to section 1465 adopted
in 1881, the title under such circumstances is now declared to
vest in the heirs; and we cannot, without doing violence to the
meaning of the word, hold that it includes devisees; nor can we,
without doing equal violence to all rules of statutory construc-
tion, read into the section the words "or devisees'*: Code Civ.
Proc, sec. 1858. The section is plain and unambiguous. Its
meaning is in no way uncertain, and when that meaning ia
found nothing is left but to declare it The wisdom of the law
is for the legislature alone.

It is concluded, therefore, that the section is a limitation upon
the power of testamentary disposition, and operates to vest the
title to the homestead in the heirs at law, and so to withdraw it
from the disposition made by the testator under his will.

Such being the case, tlie trust in block 121 fails for lack of
subject matter. But were the other view to obtain, and the prop-

Digitized by


Sept 1895.] In bb Walkbrlt, 1)3

€rty to be considered a part of the trust, the position of respond-
ents would not be bettered.

For the trust as to this land differs from that of the ^^
Walkerly block only in permitting a sale of the property before
the expiration of tiie twenty-five years. In all other essential
respects the trusts are the same. In the event of a sale still tht
proceeds are to be held and invested until distribution, which, as
in the case of the Walkerly block, is deferred to a fixed time.

The mere power of sale does not, under such circumstances,
save the provisions of the trust, since the proceeds of the sale
are still to be held in violation of the law: Civ. Code, sees. 715,
771; Estate of Hinckley, 58 Cal. 457, 481; Hawley v. James, 16
Wend. 150; Haynes v. Sherman, U7 N. Y. 433. Nor is it the
law of this state that the provisions against restraints upon
alienation do not apply to trusts of personal property, as we will
proceed to consider.

3. The trust in personal property.

The essential difference in this state between trusts in real
property, known as express trusts, and those in personal property
are: 1. The former can only be of the kinds permitted by the
statute, and no others (Civ. Code, sec. 867), while the latter may
be created generally for any purpose for which a contract may be
made (Civ. Code, sec. 2220); 2. The former must be created and
declared by writing (Civ. Code, sec. 852), while the latter may rest
upon parol: Civ. Code, sec. 2222. But to all trusts, whether of
real or personal property, the limitation upon the suspension of
the power of alienation expressed in section 715 of the Civil Code
directly applies. The section is found in division 2, part 1, titia
2, of the code, where the lawmakers are dealing, as expressly de»
clared, with the modifications of ownership and restraints upon
alienation of '^property in general.'' Again, section 771 of the
Civil Code shows plainly the applicability of the law to personal
property. For if it be only the suspension of the power to
alienate real property which is under the ban, power to sell the
realty would relieve the difficulty, and yet it is by that section
expressly declared that personal property held after sale under
the terms of the original trust ^"^ operates to suspend the power
of alienation, under section 715 of the Civil Code. And finally,
the applicability of section 715 to trusts in personal property
has often been recognized, and never questioned: Estate c^
Hinckley, 58 CaL 457; Goldtree v. Thompson, 79 CaL 613; Wilt
iams V. Williams, 73 CaL 99; Whitney v. Dodge, 105 Cal. 192.

We are not unmindful of the fact that the statutes of tbt i


Digitized by


114 In be Walkeblt. [CaL

of New York in express terms put a limitation upon the power to-
suspend the ownership of personal property: 1 N. Y. Rev. Stats.^
see. 773, subd. 1. And we have not overlooked the circumstance-
that the supreme courts of Michigan and Wisconsin have uni-
formly held that their statutes similar in terms to our code pro-
visions do not apply to trusts in personal property. But it is to
be observed that the legislature of this state, in adopting section.
715 of the Civil Code, placed it where it must apply, and there-
fore made it apply to "property in general,'* wliile the corres-
ponding section in the Miclilgan statutes (Howell's Annotated
Statutes of Michigan, sec. 6531, subd. 15), and that of the Wis-
consin statutes (Wis. Eev. Stats., sec. 2039), are found in the
chapters of the law relating to estates in real property, and so
have been construed by the courts to be applicable only to trusts
in such property: Toms v. Williams, 41 Mich. 552; Dodge v.
AVilliams, 46 Wis. 70; Palms v. Palms, 68 Mich. 356; De Wolf v.
Lawson, 61 Wis. 473; 60 Am. Hep. 148.

In those states it is held that, as to trusts in personal property,
the common-law rule still obtains. And it is for the application
of this rule that respondents here contend. But even this would
not avail to save the trust. The common-law rule against per-
petuities does not, as counsel argue, apply onjy to landed estates.
Executory .devises, springing and shifting uses, and trusts,,
whether of realty or personalty, were all within its terms: 1 Jar-
man on Wills, c. 9; Lewis on Perpetuities, 159; Perry on Trusts^,
sees. 377, 384; Lewin on Trusts, c. 7; Gray on Perpetuities, sec.
202; 4 Kent's Commentaries, 271; Cadell v. Palmer, 1 Clark & F.
372. As ®^® Jarman states: "To the test of the rule settled by
Cadell V. Palmer, 1 Clark & F. 372, every gift of real or personal
estate, by will or otherwise, must be brought**: 1 Jarman on
Wills, 217.

By the Thelluson act (39 & 40 Geo. Ill, c. 98) the maximum
period during which the power of alienation could be restrained
was lives in being and twenty-one years and nine months. Tested
by that act still would this trust be invalid.

We hold, however, that section 716 of the Civil Code not only
applies to trusts in personal property, but also that it shortens the
period permitted by the conmion law to lives in being. Private
trusts in personal property which suspend the power of alienation
must be limited like private trusts in realty to lives in being, and
the trusts here are consequently destroyed by the same vice
which invalidated those first considered.

We have thus far construed the trusts without noticing some-

Digitized by


Sept 1895.] In be Walkerly, 116

objections urged by respondents against the right of appellants
to be heard. Of those the first is that appellants are estopped
from attacking the validity of the trusts. No estoppel is found
against the appellants, but the facts which were claimed to estab-
lish one are set forth in the findings. Briefly, those facts are
that the widow and child had been receiving a family allow-
ance. By stipulation it was agreed that the order of fam-
ily allowance should be vacated, and that the executors
would thereafter pay the widow and child each four hun-
dred and sixteen dollars and sixty-six and two-thirds cents per
month; being at the rate of five per cent per annum upon the
legacies provided to be paid in the codicil to the will, and the
amounts so paid should upon distribution be treated as payments
of interest upon account of said legacies. The court made its
order in accordance with the stipulation. No mention is here
made of the trusts, and no waiver, express or implied, of the right
to demand a legal interpretation of them could thus arise. The
legacies, as has been pointed out, were not witliin the trusts, but
were independent and ^® valid bequests. The fact that under
these circumstances the widow had elected to take under the will
would have estopped her from denying the validity of the instru-
ment as a will, but did not and could not operate to estop her
from insisting upon a due interpretation of the instrument. Ap-
pellants still stand affirming the validity of the will as a will, but
insist that the trial court has not correctly interpreted some of its

It became the duty of the court for the first time upon distri-
bution to give effect to the legal devises and bequests of the tes-
tator, and it could not even with the consent of the parties de-
clare valid trusts such as these which are opposed to the express
mandate and policy of the law: Const., art. 20, sec. 9; Estate of
Hinckley, 68 Cal. 467; Civ. Code, 3513; Gray on Restraints on
Alienation, sec. 21; 2 Blackstone's Commentaries, 174; Green-
hood on Public Policy, 115.

It is next urged that, as the court made findings concerning
the testator's intent and decreed distribution in accordance with
these findings, and as the findings are not attacked and will sus-
tain the decree, and as "a volume of extrinsic circumstances
bearing on the question was introduced without objection," these
appellants are not in a position to combat the decree. But as to
this it need only be said that it is the duty of the court in all cases
to ascertain the intent of the testator from the language of the
will, and the occasions which render parol evidence of circum-
stances admissible do not here arise: C^v. Code, sees. 1318, IMO.

Digitized by


116 In be Walkeblt, [CaL

The terms of the will are plain and unambiguonB. It may
le said of all wills that the testator's intent is to make a yalid
disposition of his property, and as to most provisions which are
decreed invalid there is no difficulty in arriving at his actual
meaning and intent. But a court is not therefore authorized to
modify or vary the plain language of the testator, and thus create
a new and valid will for him, even if it were certain that the tes-
tator would have adopted the interpretation of the court had he
known his own attempt was invalid.

®®® So of the trusts decreed by the court it may be said as
was said, in Coster v. Lorillard, 14 Wend. 349: "This would
approximate nearer to the will of the testator than any other
proposed alteration. But, after a diligent inquiry, I have not
been able to satisfy myself that there is any principle or decision
that would authorize such an interference. It would be arbi-
trary and establish a precedent for courts not to construe wills
according to the intent of the testator as derived from a considera-
tion of the language used to express it, but to make a will for him,
such a one as we undertake to presimie he would have made, if
advised that his own was void as against law. This I cannot
consent to do. Better that the intent of a testator should fail in
a particular case than that the^ court should assume such arbi-
trary and undefined discretion over his estate. If we cannot exe-
cute the whole will, or some distinct and independent portion of
it, the whole had better be declared void. The law makes a
better one than will usually be made by the court.*'

So, too, where the language of the provisions of a will is plain
and unambiguous the courts are not permitted to wrest it from
its natural import in order to save it from condemnation: Cott-
man v. Grace, 112 N. Y. 299.

The determination that the trusts are void renders unneces-
sary any consideration of the other points preseited.

The trusts being void it follows, as to the property attempted
to be devised in trust, that the testator died intestate. It there-
fore descends to the heirs living at the time of his death.

For the foregoing reasons the decree is reversed.

McFarland, J., Garoutte, J., Harrison, J., Temple, J., Van
Fleet, J., and Beatty, G. J., concurred*

Rehearing denied. ___^


wiU, deDrive his minor children of their homestead rights in property
occupied by them as a homestead at the time of his death : Kleimann ▼•
Gieselmann, 114 Mo. 437; 35 Am. iSt. Rep. 761, and note. Bat in
Haxelett ▼. Farthing, 94 £y. 421, 42 Am. St. Bep. 365, it was held that

Digitized by


Sept. 1895.] In re Walkbrlt. 117

a hnaband may dispoee of his homestead hy will in any manner he may
choose, sabjeot only to the right of his widow to renounce the wili and
elaim under the statute.

The SxUe affalnat Ferpetultlea.

Denelapment of the Uaitf.— The policy of the early English law against
the alienation of estates in real property has gradually given way to a
policy which not only permits of such alienation, but also provides
against unreasonable restraints thereon, and this policy by judicial,
rather than by legislativoi action, has rcijulted in what is known as the
rule against perpetuities: Gray on Perpetuities, sec. 98. The deci-
sions upon the subject at first, while they recognized that what they
styled as remoteness mi>sht oSend against the law, did not underCdke to
formulate the rule itself or to describe the limitations which must bo
disregarded because of their disrespect to it: Child v. Baylie, W. Jones,
15. The judicial action or decision was of a negative form. It com-
menced by assuming that remoteness was against the policy of the law
and forbid 1 en, and contented itself with establishing the exceptions to
the rule, or, rather, with pointing out what remoteness was not so
against public policy that it might not be sanctioned. Upon this sub-
ject it was ultimately settled that no limitation should be treated as
void for remoteness if the conditions must take effect and the estate
finally vest, and become alienable within lives in being: Duke of Nor-
folk's case, 3 Cas. Ch. 1'. And, as we shall hereafter show, a life was
regarded as in being for the purpose of this rule from the moment of its
conception in the womb of the mother. It having been established
that a limitation by which property could vest and become alienable
within lives in being was not void for remoteness, it necessarily fol-
lowed, because of the common-law disability of infancy, unless infants
should be excluded from the operation of the rule, that an estate vested
within lives in being would be rendered practically inalienable if vested
in an infant durins the further period intervening before termination
of his infancy, audit was resolved not to withdraw infancy from the
operation of this exception to the rule, and therefore that a limitation
was not too remote if the estate could vest and become alienable at the
termination of the minority of a person begotten during a life in being
at the time the limitation became operative: Sheffield v. Orrery, 3 Atk.
282; Bullock v. Stones, 2 Ves. Sr. 521. The period having first been
' extended with the view of covering minorities, where, through the dis-
ability of an infant, the power to alienate might possibly be restrained
for twenty-one years, the next question was, whether a like restraint
might be imposed, though there was no minority, and it was ultimately
determined that such should be the case: Lloyd v. Carew, Preo. Oh.
106. This case, however, only determined that there might be an ex-
tension for a reasonable time after lives in being. It was afterward
finally settled that there might, after lives in being, be a further period
of twentv-one years, irrespective of anv minority : Goodman v. Good-
right, 2 6urr. 870; 1 W. Black. 188; Buckworth v. Tnirkell, 4 Doug. 328;
3 Bos. & P. 652, note ; Jee v. Audeley, 1 Oox 0. 0. 324 ; Long v. Blackall,
7 Term Rep. 100; Thellusson v. Woodford, 4 Ves. 227. In these cases,
however, the attention of the court was not called to the distinction, if
any, between a term in gross and a term intended to allow for the ex-
piration of minorities, and it was only within the present century that
It was finally and definitely settled that, whether any infant *or minor
was interested in an estate or not, no limitation thereof could offend
tht» law aiainst remoteness if it vested within twenty-one years and
nine months after the dee I, devise, or bequest upon which it depend'»d
for its creation took effect : Beard v. Westcott, 5 Taunt. 393, 413; 5 Barn.
& Aid. 801, 805; Ben^'oiuh v. Eniridire, 1 Sim. 173; Oadell v. Palmer, 1
Clark* F. 372,441; 7 Bliorh., N. S.. 202; 10 Bing.140; Phippsv. Ackers,
9 Clark <fe F. 583. The law upon the subject as thus finally settled in
England was r 'Co;rnized in the Unito.l States almost as soon as in the
mother country: Barnitz v. Casey, 7 Oranch, 456; and is regarded as a

Digitized by VjOOQ IC

118 In RE Walkerlt. [CaL

Sirt of the common law of the English colonies ; Yeap Oheah Neo t.
ng Cheng Neo, L. R. 6 P. 0. 381.

Definition.^The rule here under consideration has thus been stated
in Gray on Perpetuities, section 201; " No interest subject to a condi*
tion precedent is good unless the condition must be fulfilled, if at all,
within twenty-one years after some life in being at the oreation of the

**l. Perpetuities aro grants of property wherein the vesting of an es-
tate or interest is unlaw^fully postponed: Saunders on Uses and Trusts,
196; and they are usually called perpetuities, not because the grant as
written would actually make them perpetual, bat because they trans-
gress the limits which the law has set in restraint of grants that tend
to a perpetual suspense of the title, or of its vesting, or, as is some-
times, with less accuracy, expressed, to a perpetual prevention of aliena-
tion. The authorities for this will be found in what follows. Accord-
ing to this definition, a present gift to a charity is never a perpetuity,
though intended to be inalienable: Perin v. Oarey, 24 How. 46o;
and no vested grant is a perpetuity. 2. The law allows the vesting of
an estate or interest, or the power of alienation^ to be postponed, and
the accumulation of its increase to be made previous to vesting, for the
period of lives in being, and twenty-one years and nine months there-
after, and all restraints upon the vesting that may suspend it beyond
that period are treated as perpetual restraints, and, therefore, as void,
and consequently the estates or interests dependent on them are void ;
and nothing is denounced by the law as a perpetuity that does not
transgress this rule. And equity follows this rule, by way of analogy,
in dealine with executory trusts, and those trusts which transgress the
rule it calls transgressive trusts, being in equity the sabstantial equiva-
lent of what in law are called perpetnities'*^: Pniladelphia v. Girard, 45
Pa.^t. 9; 84 Am. Dec. 470, 474.

Statutory Modifl-.ation.—The one pdnt npon which there is no doubt,
unless some statute is interposed to modify the rule, is that the time
within which the estate mnst vest cannot be extended bevond twenty-
one years and nine months after some life in being. The rule, how-
ever, has been substantially modified in many parts of the United
States. We shall not undertake to state these modifications in detail,
and will refer to. them only so far as they may be necessary to give some
indication of their general character. In some of the states, as in
Arkansas, North Carolina, Tennessee, Texas, and Vermont, the subject
has been regarded as worthy of constitutional limitations, declaring
either that perpetuities shall not be, or ought not to be, allowed, or that
the legislature shall take such action as to prevent them. In Georgia,
Iowa, Kentucky, and Pennsylvania the Eni;lish rule has been substan-
tially adopted: Philadelphia v. Girard, 45 Pa. St. 9; 84 Am. Dec. 470.
In Minnesota the period of suspension of the poorer of alienation is
limited, in the case of real estate, to two lives in being at the creation
of the estate, and, as to personal property, to one life in beins and
twenty-one ^ears: In re Toveer's Estate, 49 Minn. 371. In Oalirornia
the time is limited to lives in being, while in Michigan, New York, and
Wiaconain the limitation is to two lives only. In Oonnectiout and Ohio
an estate can only be granted to persons in being and to their immediate
issue or degcendants: Beerg v. Narramore, 61 Conn. 13; Alfred v. Marks,
49 Conn. 473; Turley v. Tiirley, 11 Ohio St. 173; Brasher v. Marsh, 15
OhioSt.-I03; McArthur v. Scott, 113 U. S. 340. 382; Morris v. Bolles, 85
Conn. 45. In Alabama, lands may be conveyed to the wife and child,
or children only, severally, successively, and jointly, and to the heirs
of the body of the survivor if they come of age, and in default over, but
oonveyanci'S to other than wife and child, or children only, cannot extend
beyond three lives in being at the date of the conveyance and ten years
thereafter: Ala. Civ. Code, sec. 1834. In Mississippi the statute formerly
declared that any person might make a conveyance or devise of lands to
a succession of donens then livirv^, and to the heir or heirs of the body
of the remainderman, and, in default thereof, to the right heirs of the

Digitized by


Sept. 189S.] In be Walkeblt. 119

^onor in fee eimple, but by later legislation the namber of donees has
been restricted to two: Jordan v. Roach, 32 Miss. 481, 613; Gannon y.
Barry, 59 Miss. 289. Neither in England nor in the United States has
there been any considerable difficulty in determining the period of time

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