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from the District Court of Appeal to the Su- right to use the waterways, and the court awardpreme Court for hearing and deterinination

ed to plaintiff the easement claimed, the failure after judgment in the said District Court

to find that the former judgment was in force

did not affect plaintiff's rights. of Appeal, is denied; a majority of the jus

5. JUDGMENT-PLEADING-CONSTRUCTION. tices of this court being of the opinion that An allegation in a plea of a former judgthe constitutional provision with reference to ment that it had been adjudged that plaintiff the transfer of cases from the District Court

was the owner of a waterway across the lands

of defendant, for the purpose of conveying water of Appeal to the Supreme Court has no ap- from an irrigation ditch, means no more than plication in matters of habeas corpus. that plaintiff owned an easement to carry waters

over defendant's land through a waterway.

6. Costs-I'ERSOXS ENTITLED TO. 1. Cal. 722)

il suit for damages for trespass to an ease

ment to use a waterway over detondant's land HOYT v. HART. (Sac. 1,374, 1,4.5-1.) to carry wirers from an irrigation ditch, and (supreme Court of California. Sept. 24, 1906.

for an injunction to restrain efendant from inRehearing Denied Oct. 2, 1906.)

terfering with the waterway involves title to

re: estate within Code Civ. Proc. $ 1022, subd. 1. WATERS AND WATER COURSES-IRRIGATION

5, declaring that costs are allowed to plaintiff -ACTIOSS FOR INJURIES JUDGMENT.

on a judement in his favor in an action inIn a suit to restrain defendant from inter- volving title to real estate, and plaintiff, on obfering with the waters of an irrigation ditol, taining a juigment, is entitled to costs. and for «lam.ges for trespass on plaintiff's rights,

[Ed. Note...For cases in point, see Cent. Dig. it was fou that the water to which plaintiff

vol. 1:), l'ois, $ 1:8.] was entitled was only one-eighth of that flowing in the ditch, which one-eighth at no time excred

7. SAME. Pil 73 inches. She was awarded by the decrepil

Code Civ. Proc. $ 1022. subd., declares right to carry her share of the water over de

that costs are allowed to plaintiff on a jurgtendant's land through the waterways in whi: h

mont in his favor in an action involving the she claimed a right to carry it. T'he decree per

title or possession of real estate. Plaintiff mitted defendant to use the waterways without

brought suit to restrain defendant from interinüringing plaintiff's rights, and he was restrain- forin: with his caserrent to carry water from c" from reducing the same so that their carrying

an irrigation ditch in waterways through decapacity would be less than 75 inches or from fondant's land. Defendant filed a (ross-comliminishing the supply of water to which plain

plaint, asking the court to divide the waters of tiff was entitled. II cld, that there was no in

the clitch according to the rights of the parties. (ensistency between the portion of the decree

The deeree lictermined the rights of the parties. ole laring that plaintiff had an easement in the

JIrld, that it was not error to divide the costs Waterways and the portion which granted to between the parties where it did not appear Flyrendant the right to use them jointly with

what portion of the costs was properly attributulaintiff : the casement being a right to use the

able to the trial of the original action and what lin'l of defendant for ronduiting the water to portion to the trial of the cross-action. Dr own land.

El. Yote..-Forases in point, see Cent. Dig. 2. SAJE.

vol. 1:, ('osts, &$ 272, 274.] . In a suit to restrain defendant from inter

8. APPEAL -- ERRORS IN JUDGMENT CORRECfiring with the waters in an irrigition ditch,

TIOX. it wils found that the water to vinich plaintiff The error in a judgment in a suit asking 'vis entitled was only one-eighth of that flow

for an injunction, and for damages which omits ing in the ditch, which one-cighth at 10 time to give plaintiff judgment for $1 damages awardexineded 75 inches. The decree awarded plained by the jury is too trifling to require a modifitilf a right to carry her share of the water over cation. offendant's land through the waterways in ruch she claimed a right to carry it and gave Department 1. Appeal from Superior lojendant a right to use them subjert to the

Court. Siskiyou County: J. S. Beard, Judge. proviso that he should not interfere with the :low' to which plaintiff was entitled. Held that.

Action by Elizabeth Toyt against E. C. if the waterways were reduced to a capacity of Ilart. From al

From al judgment granting insuffi3) inches, defendant would be entitled to use rient relief, and from an order denying a mothem only when plaintiff's one-eighth share of

tion for a new trial, plaintiff appeals. Afthe waters of the ditch amounted to less than 7.7 inches, and then only to such extent as

firmed. Trould not prevent plaintiff from receiving her

R. S. Taylor, for appellant. Gillis & Tapfull one-eighth share.

scott and James F. Farra her, for respondent. 3. TRIAL.-IDOPTION BY COURT OM VERDICT OF JURY-CFFECT.

Where, in a suit to restrain a defendant SLOSS, J. The plaintiff prosecutes two from interfering with the waters of an irriga

separate appeals: one from the judgment, tion ditch, and for damages for past interference, the issue raised by the allegation in

and one from an order denying a motion the complaint and the denial in the answer that

for new trial. Both may be considered in a lefendant trespassed on plaintiff's easement to single opinion. his damage was determined by the verdict of the jury, and the court adopted the verdict.

The plaintiff and the defendant are owners there was no necessity for any further finding

of adjoining tracts of agricultural land in by the court.

Siskiyou county, the plaintiff's holding lying 4. SAME--FINDING OF TRIAL COURT-DETER- to the west of the defendant's. On the eastMINATION OF ISSUES-SUFFICIENCY.

erly side of the defendant's land there runs Where, in a suit to restrain defendant from interfering with the waters in an irrigation

an irrigating ditch, variously designated in ditrih, plaintiff in his answer to the cross-com- the record as the “Miller, Host, and Casedy plaint alleged a former judgment in his favor Ditch” and as the “Burgess Ditch," and each which declared plaintiff's title to an easement,

of the parties claims an interest in a portion consisting of the right to use waterways over defendant's land to take water from the ditch

of the waters flowing through it. The comwithout determining whether defendant had a plaint alleges that the plaintiff is the owner

of 200 inches, measured under a four-inch pressure, of the waters flowing through such ditch, which is stated to have a capacity of 800 inches. It is alleged that for 40 years the plaintiff and her predecessors have conducted their share of the waters of the Burgess ditch over the lands of the defendant through a certain ditch and waterway, the course of which is described, and that they have so conducted such waters continuously, adversely, and under a claim of right. The complaint further sets forth that in May and June, 1903, while the plaintiff was on deTendant's land, cleaning out the ditches and waterways connecting with her land, the defendant drove off her workmen, and filled up the ditches, to her damage in the sum of $2,000. The prayer is for judgment for the damage sustained, and for an injunction restraining the defendant from preventing plaintiff from entering upon his lands and cleaning out the ditches across the same, and restraining the defendant from filling up said ditches or interfering with the flow of piaintiff's waters therein. A temporary injunction, restraining these acts was granted. The answer denies that the Burgess ditch is capable of carrying more than 600 inches of water, denies that plaintiff is the owner of 900 inches of the water carried in it, and alleges that the Burgess ditch does not carry a steady and uniform flow of water, and that its owners are entitled, not to a definite or fixed amount measured in inchies, but only to a certain proportion of the water flowing in said ditch, the plaintiff's share being oneeighth of such water. It is alleged that the defendant owns five-eighths of the water flowing through the Burgess ditch, and that he has an interest in the other two-eighths, subject to the right of C. Henry Haight to first use them for irrigating his lands. The answer denies that plaintiff has received her share of the water through any defined channel or water course across his lands, but asserts that he, the defendant, has used certain ditches to spread water from the Burgess ditch over his own property, and that plaintiff's water has come to her partly througu these ditches, and partly by overflow on the surface of the soil. The defendant aileges, further, that plaintiff had come upon his land and toru out of his ditches a number of dams and gates, and had dug new ditches, deepened the old ones and so prevented defendant from using his irrigating system. The plaintiff's allegation of damage is denied. In a crosscomplaint the defendant sets up substantially the same matters pleaded in the answer, asks that the court divide the waters of the Burgess ditch according to the rights of the parties, that plaintiff be required to conduct her waters by a route to be directed by the court, outside of defendant's irrigated premises, and that plaintiff be enjoined from interfering with defendant's dams or ditches. Plaintiff's answer to the cross-complaint asserts that the Burgess ditch bas a capacity

of 1,000 inches, denies the commission of the wrongful acts charged against her in the cross-complaint, and sets up a prior judgment by which it was determined that the plaintiff was the owner of a ditch and waterway across the lands of defendant for the purpose of conveying her waters through said lands of defendant. This judgment is asserted as an estoppel precluding defendant from asserting that plaintiff is not the owner of said ditch and waterway. By order of the court, C. Henry Haight was brought in as a party, and filed a pleading asserting a claim to two-eighths of the water of the Burgess ditch. As his rights are not here iu dispute, they need not be further considered. The cause was tried before a jury, which returned a general verdict in favor of the plaintiff, assessing her damages at $1, and in addition, specially found as follows: (1) We find that Mrs. Hoyt owns oneeighth of the Miller, Hoyt, and Casedy ditch. (2) The said one-eighth to be delivered over the premises of E. C. Hart and through what is known as the 'B ditch.' (3) Water to be measured at the point taken from the Miller, Hoyt, and Casedly ditch between one foot and 100 feet north of where the back ditch leaves the Miller, Iloyt, and Casedy ditch. (4) Measuring box to be placed ini the west end of the B ditch between one foot and 100 feet from the fence or Hoyt line. (5) Mrs. Hoyt to pay one-eighth of the expense for keeping up the said waterway and not to interfere in any way with the irrigating water system of the defendant." The court made its findings of fact, in which it set forth the foregoing verdict and special findings of the jury, and, as it recites, "aftter fully considering the verdict and findings of the jury," it found that the full capacity of the Burgess ditch is not more than 600 inches, that the water actually carried in it during the irrigating season varies from time to time, at times getting as low as from 40 to 60 inches; that the plaintiff and her predecessors owned an undivided one-eighth of these waters, and the defendant Hart fiveeighths, Haight having a first right to the remaining two-eighths, that plaintiff's proportion at no time. exceeds 75 inches; that plaintiff and her predecessors have for many years conducted their one-eighth part of the waters of the Burgess ditch over defendant's land through ditches and waterways in a described course, that since the commencement of the action the plaintiff has materially enlarged and deepened one of the ditches running through defendant's land, and has torni out defendant's dams and turnouts, that said ditch has been so enlarged that stock cannot cross it safely, and wagons or farming machinery cannot be driven over it, that these operations have prevented defendant from using for irrigation his share of the waters. It is found that these ditches through defendant's land were constructed by him and his predecessors, and that for 40 years said

ditches have been used for Irrigating the use can nerer, under the terms of the decree, Hart premises. Following these findings, infringe upon her rights. He is restrained there was a decree or judgment, which from reducing these ditches so that their after setting forth the rights of the par- carrying capacity will be less than 75 inches, ties to the waters of the Burgess ditch, or from diminishing the flow of waters to and the plaintiff's easement over the prem- which plaintiff is entitled, and his right to ises of the defendant, Hart, as described use the ditches is expressly made subject in the findings, declares that said easement to the proviso that he at no time prevents of plaintiff is held by her in common with plaintiff's one-eighth of the waters of the lefendant, Hart, "and he has the right to Burgess ditch from flowing through the conconduct his waters through said ditches, etc., necting ditches. There is no inconsistency jointly with plaintiff and to the extent here- between the portion of the decree declaring inafter specified." The decree then provides that plaintiff has an easement in these for a division of the waters of the Burgess ditches, and that portion which grants to deditch by means of a dividing box, and enjoins fendant the right to use the ditches jointly the defendant Ilart from damming or filling with plaintiff for the purpose of carrying up the ditches in which plaintiff has an ease- his waters. The casement is a right to use ment so as to reduce their carrying capacity the lands of the defendant for conducting to less than 75 inches, "or from in any way her waters to her lands. It can coexist with or manner interfering with or arresting or a right in the defendant or any one else to diminishing the flow of water therein to use the same waterways, so long as such use which the plaintiff, Elizabeth Hoyt, is at any does not restrict or interfere with the right time entitled to have and receive as her pro- owned by the plaintiff. It would not be portionate share of the waters of said Bur- claimed that merely because A. has a right yess ditch; Provided, however, that said de- of way over B.'s land, B. cannot, under any tendant, Hart” shall be permitted to fill up circumstances, use the portion of his land said ditches so that they shall be as they affected by the easement in a manner which were before plaintiff deepened them, and to does not infringe upon the exercise of such use said ditches, in common with plaintiff for easement. It is well settled, as a general carrying his own waters “provided, however, proposition, that the owner of the servient that he at no time prevents the one-eighth estate, may use his property in any manner of the waters of the said Burgess

学 * * * and for any purpose consistent with the enlitch from flowing down through said ditch- | joyment of the easement, “Thus in a case of

s." The plaintiff is by the decree enjoin- a way the owner of the servient estate may ed from interfering with Hart's premises or use the land over which it passes in any his irrigating system except for the purpose manner which does not materially impair or of cleaning out and repairing the ditches unreasonably interfere with its use as a way. and waterways in which she has an ease- He may himself use it as a way

* * ment. The costs are evenly divided between unless the rights of the owner of the easethe parties, and judgment is given to plaintiff ment are exclusive.” 14 Cyc. 1208, and cases for $23.60, the excess of her costs, as taxed, cited. In the case at bar there is no allegaover one-half of the costs of both.

tion that the plaintiff's right was exclusive. It has seemed necessary to make this some

The court found, and the evidence fully supwhat extended statement of the plea dings, ported the finding, that for 40 years the deand the proceedings culminating in the de. fendant and his grantors had used these cree, in order that the points made by the ditches as a portion of the irrigating system plaintiff on her appeals may be clearly set of the Hart lands. This finding, which was forth and discussed. The appellant's princi- within the issues, necessarily called for the pal objection is directed against the provi- | adjudication that Hart might continue to use sions of the decree which declare her right these ditches, provided that he so used them to an easement across defendant's land. It as not to interfere with plaintiff's right. It

is defendant to use the ditches running over his reduce the capacity of the ditches to 75 inchland in common with the plaintiff, deprives es, and to use them in common with plainthe plaintiff of the fixed and definite ease- tiff, the plaintiff may be restricted to onement claimed by her. But we fail to see half of the capacity of a ditch which, when that these provisions of the decree fall short full, is only large enough to accommodate in any degree of securing to the appellant the flow to which she is entitled, viz., 75 her full rights. It having been found that inches. In answer to this, it is sufficient to the water to which she is entitled is only one- say that defendant's right to use the ditches eighth of that flowing in the Burgess ditch, is always subject to the proviso that he shall and that this one-eighth at no time exceeds 75 not interfere with the flow to which plaintiff inches, she is awarded by the decree a right is entitled. If the ditches be reduced to a to carry her share of the water over the de- capacity of 75 inches, defendant will be enfendant's land through the ditches and water- titled to use them only when plaintiff's one ways in which she has claimed a right to eighth share of the waters of the Burgess carry it. It is true that defendant is also ditch amounts to less than 75 inches, and permitted to use these waterways, but his then only to such extent as will not prevent plaintiff from receiving her full one-eighth statutory provisions regulating the allowance share.

of costs. Section 1022 of the Code of Civil There is no force in the contention that Procedure declares that "costs are allowed, the court failed to find upon material is- of course, to the plaintiff, upon a judgment sues. The issue raised by the allegation in his favor, in the following cases: (and denial) that defendant trespassed upon (5) In an action which involves the title or plaintiff's casement, to her damage, is de- possession of real estate. * *

We termined by the verdict of the jury, which, think this action, in which the main issue from the findings and the judgment, appear's was whether or not the plaintiff was the to have been adopted and accepted by the owner of an casement over defendant's land ('ourt. Such adoption obviated the necessity involved the "title or possession to real esof any further finding. Golilman v. Rogers, tate" within the meaning of this section. An 85 Cal. 578, 24 Mac. 782; Morrison v. Stone, casement is real estate; and its possession or 103 Cal. 9-1, 37 Pac. 112. There is no find- title is involved in an action seeking damages ing upon the issue tendered by the answer to for past trespasses and a restraint against the cross-complaint, alleging a former julg- i future trespasses upon such eisement, where ment in favor of plaintiff, but the absence ! the defendant puts in issue the existence of of such finding is immaterial. Plaintiff relied the easement. My cases holding that such upon this judgment merely for the purpose actions come within the terms of similar of establishing her right to an easement for statutes are cited in 11 Cyc. 19, O, and the conveying her water across defendant's land. same result must follow from the former adShe has been awardeil the casement (laimed, judications of this court. Schmidt v. Klotz, und would be entitled to no sredier rights if 130 Cal. 22-1, 62 Pac. 170; Sierra Union, etc., the court had expressly found that such case- Co. v. Wolfr, 144 Cal. 130, 77 L'ac. 1038; ment had been established in her favor by Gibson v. Ilammang, 113 Cal. 131, 78 Pac. a prior judgment. As we have sean, plain- 953. See also, Kelly v. Central Pac. R. R. tiff's ownership of an easement over defend- Co., 7+ Cal. 56), 16 Pac. 386, 5 Am. St. Ror. aunt's land is in no degree inconsistent with 470. And, if the action involves the title or the use, by defendant, of the servient tene- possession of real estate, it is immaterial ment, so long as such use is subordinate to what the form of action may be, or whether the easement and does not restrict or limit the relief sought is, in whole or in part, its exercise. The former judgment declaring equitable. If the plaintiff recovers,

even plaintiff's title to such casement did not pur- though only as to a portion of the title or port to determine whether or not defendant possession involved, the right to costs follows had a right to use the ditches. It merely of course under the terms of the statute. determined that plaintiff had a certain right Sierra Co. v. Wolff, supra; Gibson v. Ilamin them. This right is secured to her by mang, supra. So far, therefore, as concerned the present decree. A finding that the for- the trial of the issues arising on the commer judgment was in force would not have plaint and the answer thereto, the plaintiff, entitled her to any greater relief than she haring prevailed, was entitled to costs. But received. The absence of such finding can- there was also a cross-complaint, involving. not therefore affect the judgment now com- in like manner, the title or possession of real plained of. Gould V. Adams, 108 Cal. 36), estate. As to this, the defendant was plain41 l'ac. 409; Blochman v. Spreckels, 13.5 Cal. tiff, and he succeeded in establishing. ili 662, 67 Pac. 1061, 57 L. R. A. 213. In plain- part, the right claimed, and was granted retiff's plea of former judgment the allegation lief. If the questions raised by the crossis that it had been adjudicated that she was complaint and the answer thereto had been the owner of a “ditch and waterway" across litigated in a separate action, the defendant the lands of defendant for the purpose of herein, who would have been plaintiff in such conveying waters. In the foregoing discus- action. would have been cntitled to his costs. sion we have treated this allegation as mean- We think his right thereto is not affected by ing no more than that she owned an ease- the fact that he prosecuted his claim as ment or right to carry waters over his lands plaintiff in a cross-complaint. On the record through a ditch or waterway, and such we before us, it does not appear what portion think is the proper construction of the lan- of the total costs were properly attributable guage quoted. For reasons above stated, it to the trial of the original action, and what is of no importance that the court did not portion to the trial of the (loss-action. find that defendant threatened to continue far as we can see, the division of the costs to commit the acts complained of. The pur- made by the court may have resulted in givpose of the allegation to this effect was to ing to each of the parties the exact amount entitle plaintiff to an injunction restraining of costs which he or she had the right to such acts, and this relief was granted her. recover. Error will never be presumed, but

The appellant contends that the court erred must be made to allirmatively appear, and in dividing the costs between the parties. this court cannot say that any right of the The general rule is undoubtedly that in suits plaintiff was injuriously affected by the apin equity the costs may be apportioned ac- portionment of costs directed by the judgcording to the discretion of the court. But ment. the rule has been modified in this state by The decree, probably through inadvertence,

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omits to give plaintiff judgment for the $1 ! 4. SAME. damages awarded her by the verdict of the

Where no trust is created and the legal jury. This oversight we regard as too tri

effect of a will is to rest the present title to the

entire fee in persons ascertained and in being. fling to require even a modification of the

although diferent interests or rights therein judgment.

are given to each of such persons, the interest The judgment and order appealed from are

of each person can be conveyed immediately. aflirmed.

[Ed. Yote.--For cases in point, see Cent. Dig. vol. 39, Perpetuities, $ 45.]

5. SAME. We concur: ANGELLOTTI, J.; SILAW, J. Civ. Code, $s 71.5 and 716. prohibiting the

suspension of the absolute power of alienation of property for a period longer than the livis

of persons in being, relate to suspension of pow(149 Cal. 712)

er by the terms of the instrument by which the In re CAMPBELLS ESTATE. (L. A. 1,791.) : estate is creatoil

, and the fact that some of the

interested persons are minors, incapable of exeCAMPBELL v. CAMPBELL et al.

cuting a valid conveyance, except by the inter(Sujireine Court of California. Sept. 21, 1906.)

vention of the court, does not bring the case

within the prohibition. 1. WILLS--CREATION OF TRUST.

[Ed. Vote.--For cases in point, see Cent. Dig. I will authorized the executrix to sell any vol. 39, Perpetuities, $ 4.3.] property of the estate at public or private sale, with or without notice and without any order

6. WILLS — INTERESTS CREATED – V'ESTED Esof court, but directed that different pieces of

TATE. property should be beld for certain prices, until

I will authorized the executrix to sell any the testator's daughter should arrive at the age

of the property of the estate without any order of 21 years, or, in case of her death before that

from the court, but directed that it should be time, until she would have arrived at that age

held for certain prices until the testator's daugliif she suurived, unless said property were sold

ter should arrive at the age of 21 years, or, in before that time at the prices stated. It further

case of her death before that time, until she provided that when said daughter arrived at the

would have arrived at that age ii she had surage of 21 years, or would arrive at such age.

vivel. It further provided that the money rethen all of such properties that might be un: :ceived after the testator's death from each of disposed of at that time should be disposed of

the groups of properties mentioned), either from by the executrix for the best price obtainable.

payments made after his death upon sales made and the proceeds divided as specially directed.

by him before death or from sales made after It further provided for the division of the pro

his death should be divided and paid over as ceeds of the property. Held, that the power to

follows:" Of the first $600.000. four-sixths 10 sell was a naked power, not coupled with an

three of his children, one-sixth to another son, interest, and therefore no trust was created.

and one sixth to his nephew of the next $200,

000, one-h:lf to certain nephews and nieces, 2. L'ERPETI'ITIES — POWER OF ALIENATION

and one-half to a university : the next $100,000 SUSPENSION.

was bequeathed to the testator's wife, and the A will, authorizing the executrix to sell

remainder was given to his wife in trust for any of the property of the estate at public or

their three children. Held, that the interests private sale, with or without notice, and with

created by the will were vested estates. out any order from the court, but directing that different pieces of property should be held for

[Ed. Yote.--For cases in point, sie Cent. Dig. certain prices until testator's daughter should

vol. 49, Wills, SS 1164, 1-470, 1471.) arrive at the age of 21 years, or, in case of her 7. JUDGJENTS — FOREIGN JUDGMENTS - Coxdeath before that time, until she would have ar- STRUCTION OF WILL-CONCLUSIVENESS. rived at the age of 21 years if she had survived, A judgment of a court of another state in merely enlarged the legal power of the executrix . ancillary administration proceedings, distribut60 that she could sell without previous authority, ing the proceeds of property in that state, is the condition being a limitation solely upon the. of no binding force as a general judicial conexpress power of sale given by the will, and it :struction of the will to be applied and enforced did not apply to or restrict the statutory powers | in this state in the administration of assets of the executrix to sell under an order of court within the jurisdiction of its courts. whenever it should be necessary, and it was not in violation of Civ. Code. $$ 715, 716, pro

Department 1. Appeal from Superior hibiting the suspension of the absolute power Court, Riverside County; J. S. Noyes, Judge. of alienation of property for a period longer Action by Charles Rufus Campbell against than the lives of persons in being at the testator's death.

Eleanor Campbell, and others. From the El. Note. For cases in point, see Cent. Dig.

judgment rendered, certain defendants apvol. 39. Perpetuities, $ 45.]

peal. Reversed. 3. SAME.

Ilavilen E Ilayden, Crane & Woolburn A will, authorizing the executrix to sell

Bros., and Miguel Estudillo, for appellants. any of the property at public or private sale, with or without notice, and without any order

A. H. Stuttsman, Collier & Carnahan, and of the court, and directing that the property Purrington & Adair, for respondent. should be held for a certain price until the testitor's daughter should arrive at the age of 21, years, or, in case of her death, before that time..

SILAW, J. This is a proceeding under secuntil she would have arrived at that age, unless tion 1661 of the Code of Civil Procedure to the property was sold before that time at prices obtain a decree declaring the succession to stated, did not suspend or affect the power of

the estate of Allen G. Campbell, deceasedi. the legatees or beneficiaries to alienate their respective interests, within Civ. Code, $$ 715,

The court below held that certain provisios 716, prohibiting the suspension of the absolute of the will of the deceased, purporting to power of alienation of property for a period dispose of a large part of the estate, operated jonger than the lives of persons in being at the

to suspend the absolute power of alienation testator's death. Ed. Yote..- For (ases in point, see Cent. Dig.

of the property for a period longer than the vol. 39, Perpetuities, $ 45.]

lives of persons in being at his death, that

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