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they were, therefore, contrary to sections 715 and 716 of the Civil Code and void, and that, in consequence, he died intestate as to this property and that it descended to his legal heirs. The soundness of this conclusion is the particular question in the case. The appellants are beneficiaries claiming under the provisions of the will thus declared to be inoperative. By the terms of the will the executrix was authorized to sell any property of the estate, at public or private sale, with or without notice, and without any order from the court. The provisions in controversy are as follows:

"Item 8. I hereby direct that all my coal and iron mines, situate in Iron county, Utah, shall be held for the price of $300.000; that all my lead, silver and gold mines, situate in Beaver county, Utah, shall be held for the price of $150,000; that all my now patented lead, silver, gold and copper mines, situate in Yellow Pine Mining District, Lincoln county, Nevada, be held for the price of $200,000, and my Brick Consolidated Gold Mines, situate in Vanderbilt Mining District, San Bernardino county, California, be held for the price of $500,000 until my said daughter Caroline Neil Campbell shall arrive at the irge of twenty-one years, or in case of her

leath before that time, until she would have arrived at the age of twenty-one years if she had survived, unless said properties are solid before that time at the prices herein stipulated: and said properties as groups, shall be sold separately or together, when the price herein mentioned or more can be obtained

"Item 9. When my said daughter, Caroline, arrives at the age of twenty-one years, or would arrive at such age, then all of such properties that may he undisposed of at that time my said executrix shall dispose of, for the best price obtainable and divide the proceeds as hereinafter specially directed. In no case, however, shall such bequests he paid unless derived from the proceeds of such properties as herein mentioned, and the hequests shall be paid fully in the prder herein mentioned."

It was further provided by item 12 that the money received after the testator's death from each of the groups of properties mentioned in item 8, either from payments made after his death upon sales made by him before death, or from sales made after his death, should "be divided and paid over as follows": of the first $600,000, four-sixths to his three children by his wife Eleanor, onesixth to his son, Charles Rufus, and one-sixth to his nephew, William B. Stanley; of the next $200.000, one-half to certain nephews and nieces and one-half to Campbell University. By item 13 the next $100,000 of such money was bequeathed to his wife Eleanor, and by items 14 and 4, taken together, the remainder, and all other property not otherwise specifically disposed of, was given to

his wife, in trust for their three children, to be held by her for their use until his daughter Caroline reached the age of 21 years. Caroline was born in October, 1898, and, hence, will not be 21 years of age until October 1919. It is claimed that the effect of these provisions of the will is to prevent an absolute disposition of the property until after the latter date, unless in the meantime, it can be sold at the prices fixed in the will. We cannot accede to this proposition.

The will does not devise the lands to the executrix in trust with power to sell in execution of such trust, nor create any trust in her, except such as pertains to her office as executrix (Bank v. Rice, 143 Cal. 272, 76 Pac. 1020), nor does it, with relation to the supposed suspension of power, create any trust in the land in question here. No estate or property whatever is given to the executrix, and without an estate as its subject there can be no trust. The power to sell is given to the executrix in her representative capacity, and is a naked power not coupled with an interest. Estate of Delany, 49 Cal. 35; Auguisola v. Arnaz, 51 Cal. 435; Estep v. Armstrong, 91 Cal. 639, 27 Pac. 1091; Bank v. Rice. supra; Chaplin on Suspension of Power of Alienation, $ 96. The only effect of conferring such a power by will is to enlarge the legal power of the executris so that she can sell without previous authority from the court, although not without subsequent confirmation. The condition that, prior to October 1919, such sales shall not be made unless certain prices are obtained, is a limitation solely upon the express power of sale given by the will to the executrix. It does not and could not apply to or restrict the statutory powers of the executrix to sell under an order of the court whenever it is shown to be necessary to sell, or beneficial to the persons interested in the estate to do so. Estate of Pforr, 144 Cal. 126, 77 Pac. S25. Nor does it suspend or affect the power of the legatees or beneficiaries of the fund to be created under the will, to alienate their respective interests in the fund. It does not purport to operate in any manner upon the interests of the beneficiaries and, therefore, they are left free to dispose of their rights and interests in any lawful mode. The giving of this power of sale with the limitation annexed suspending its full exercise for any period, is not that character of suspension of the absolute power of alienation which is forbidden by the Code. The prohibition of the Code is directed toward the suspension of the power when exercised by those who hold or control the estate, or some interest therein, and not to provisions limiting the naked power to sell given to one without any interest whatever, such as an executor or agent. The testator was at liberty to either give or withhold the special power to sell, and if given, to attach to it such limitations as he saw

fit. But in whatever form he chose to leave is, of necessity, an absolute fee in possesit, it would not affect the general power of sion.” Chaplin on Suspension, § 64; Gray alienation of the estate, either by the ex- on Perpetuities, $ 274. The limitation upon ecutris under order of the court, or by the the power of sale given to the executrix persons to whom the property was given. does not affect this rule in the least, for the If there is any infraction of the rule for- executrix, as we have seen, has not, in her bidding such suspension, it does not arise representative capacity, any interest in the from the limitation upon the power of the property, but only a naked power. The fact executrix to sell.

that some of the interested persons are miThe contention of the respondents appears nors, incapable of executing a valid conveyto be that the disposition of the property ance except by the intervention of the court, made by the will, is of such a character that does not bring the case within the prohibiit of necessity prevents the alienation there- tion. The suspension of power as to the of by the persons interested, except for the minors' interests, in such a case, would not fixed prices, until after October, 1919. This be made by the will, but by the law. The proposition assumes, either that, during this prohibition is against those limitations upon period, there can be no alienation except by the power of alienation which may be imthe executrix under the power given in the posed by dispositions of property, and not will, or that the persons in whom the es- against limitations made by the law upon the tate vests at the death of the testator are capacity to convey. “The suspension of the deprived of such power during the said power of alienation which is prohibited by period. We think this proposition is not statute is such as arises from the terms of maintainable. The property of a decedent the instrument by which the estate is creatvests immediately upon his death, either in ed, and not such as exists outside of that his heirs, or in the devisees and legatees. instrument, as a disability of a person in Civ. Cole, $$ 1341, 1384; Estep v. Armstrong, whom an interest is vested, or the delay supra; Estate of Delany, supra. When prop- incident to procuring an order of court for erty is vested, without valid limitations to the sale or its confirmation." Estate of the contrary, the power of alienation goes Pforr, 144 Cal. 121, 77 Pac. 825. “The suswith it as a concomitant of ownership. Chap- pension must be by virtue of some provision lin on Suspension, $ 61, note 2; Williams in the instrument by which the limitation, v. Williams, 73 Cal. 102, 14 Pac. 391; To- condition, or estate is created. and the powland v. Toland, 123 Cal. 143, 55 Pac. 681; er is not suspended by a mere direction In re Winter, 114 Cal. 188, 45 Pac. 1063. If in the instrument to make a sale or other the will vests in any person the present title alienation of the land after a designated reto any interest or estate, other than in trust, riod of time.” Toland v. Toland, 123 Cal. a provision directly or indirectly restraining 143, 55 Pac. 681. such person from alienating itwould be It cannot be doubted that the interests repugnant to the particular interest created, created by the will in the property of the and, consequently, void. Civ. Code, & 711, estate are all vested interests. No specific Hence, since there is no trust created, if the disposition is made of the rents, issues, prolegal effect of the will is to vest the present ceeds, or profits of the mines mentioned in title to the entire fee in persons ascertained item 8, which may accrue during the time and in being, although different interests between the death of the testator, and the or rights therein are given to each of such sale of the property. The funds arising persons, the interest of each person can be from these, therefore, fall into the residue conveyed immediately and the collective disposed of by items 4 and 14, and the right transfers of all the interested persons will thereto is thereby vested in the wife as trusconvey the absolute fee. The power of tee for the designated children. The respecalienation is not suspended, when there are tive rights of the several legatees in the propersons in being by whom an absolute in- ceeds of the lands when sold, although such terest in possession can be conveyed. Civ. shares of the proceeds cannot be received, Code, $ 716. Such conveyance may be con- nor the actual sum payable to each ascertainsummated either by the joint act of all, or ed, until the sales are made, are nevertheby the separate and independent conveyances less interests which vested upon the death of the several persons seised of the interests. of the testator, the enjoyment, only, being "Whenever there is in being a representa- postponed until the fund out of which paytive for each estate, interest, right and pos- ment was to be made should be realized. sibility, present and future, vested and con- The fact that as to those entitled after the tingent, each capable of alienating-if he legacies to the children and the nephew were wishes-the estate or interest represented by satisfied, it could not be ascertained whether him, there can be no suspension. For the or not they would receive anything until sufvarious estates and

interests constitute ficient sales should be made to satisfy the amongst them the makings of an absolute prior charges, does not prevent the vesting fee; and if by releases or conveyances to a of those interests in like manner. The right common grantee, these can be consolidated to the shares vested immediately, subject onin one, the consolidated estate thus formed ly to be defeated by the failure of the prop

erty to produce sufficient funds wherewith terest and estate in the lands. If there reto pay them. “It may be laid down as a gen- mains any other existing estate, right, title, eral rule that where, by a will, shares or or interest therein, legal or equitable, therein interests in real or personal estate, to be as- remaining, it is the barren, formal, legal certained by a division, are given, or where title for so long a time as may elapse bethe real estate is directed to be sold and the tween the death of the testator and the sale. proceeds divided, the estate or interest of the Bank v. Rice, 143 Cal. 271, 76 Pac. 1020. No devisee or legatee in the property to be di- disposition appears to have been made of this vided or converted is a vested interest be- formal title, unless it is included in the resifore the conversion or division, and that lim- due given to the wife in trust. It is not itations over to take effect in case of the necessary to determine what has become of death of those first designated prior to the it, for, in any case, it is vested, and the will division or sale must be held .to refer to the does not directly or indirectly forbid or pretime appointed for the division or sale, and vent a transfer of it by the persons in whom it not to the period of their completion, unless is vested, whether it be in the wife as trustee, the language of the will clearly and unequiv. in the heirs at law, or in the beneficiaries. ocally expressed an intention that the rest- All the interests being vested, there being no ing shall be postponed until such completion. valid attempt to forbid any persons seised

*” “A similar rule is applied to gifts of any particular interests or estates from of shares or legacies to be paid out of a fund conveying the same, and the persons in whom or surplus to be collected in or ascertained they are vested being ascertained, it follows, and divided; and in those cases the interests

under the rules we have stated, that a presof the legatees are held to vest absolutely be

ent alienation of the absolute fee is at any fore the fund is collected, or the surplus as

tiine possible, and hence, that there is no certained, or division actually made.

invalidity in the portions of the will atThe uncertainty as to the shares is no obstacle

tacked. to such a vesting; a vested estate can exist

We have, so far, treated the case upon the in an undivided share, as well as in a spe- assumption that the disposition of the resiThe piece of land; and it is not necessary

due of the estate to the wife, in trust for that the share should be ascertained by sep

the three designated children, is valid. It aration, providert the rule for its ascertain

is contended that it is void because it leaves ment is established." Manice v. Manice, 43 no power of disposition of the corpus of such V. Y. 303; IIone's Executrix v. Van Schaick, residue in any person in being until the time 20 Wend. (N. Y.) 564; Wetherhead v. Stod

when the child Caroline arrives at the age dard, 58 Vt. 632, 5 Atl. 517, 56 Am. Rep.

of 21 years. We do not wish to be under:573; Robert v. Carning, S9 N. Y. 223: Hender

stood as expressing any opinion upon the son v. Henderson, 113 N. Y. 1, 20 N. E. validity of this part of the will. The appelS14: Millaril's Appeal, 87 Pa. St. 157; in re lants herein are not interested in the residue, Winter, 114 Cal. 188, 45 Pac. 1063.

and the validity of the disposition made of it The bequest of the six shares to the chil

does not affect the validity of their specific dren and nepliew is not made to them as a

legacies, and is not involved in the case as class, as was the case in Istate of Winter, presented on this appeal. If it is invalid, 114 Cal. 186, 45 Pac. 1063, but to each sev- the residue may go absolutely to the legal erally. Nor is the right to share in the fund

heirs, but whether so or not, the appellants contingent, as in that case, upon survival

will first be entitled to receive their respecuntil division take place. The language of tive special bequests or derises. What bethe opinions in Estate of Walkerly, 108 Cal. comes of the residue after they are paid, is 644, 41 Pac. 772, 49 Am. St. Rep. 97, and of no importance to them so far as the legaEstate of Caverly, 119 Cal. 409, 51 Pac. 629,

cies are concerned. was used with reference to the fact, apparent In view of the necessity of reversing the in those cases, that by the terms of the in- / judgment appealed from, and the possibility struments there under consideration a trust of another trial, we find it necessary to conwas created in fee which was vested in sider another point presented in the record. trustees absolutely for that purpose, and such The testator was, at the time of his death, trustees were, by the terms of the trust, domiciled in Riverside county, in this state, forbidden to convey within a certain pre- and the will was there first probated. Subscribed period, and, consequently, during that sequently, the will was admitted to probate time there were no persons who could con- in the state of Utah and ancillary adminisvey the present estate. Those cases are dis- tration was had there through an administinguished from the present case by the fact trator with the will annexed, appointed by that in this case no trust has been created, the courts of that state, in which a large and the interests all vest in persons who can part of the land involved in the controversy convey immediately. These respective in- is situated. The administrator with the will terests in the proceeds of the contemplated annexed reported to the courts of that state sales, thus vested in the beneficiaries, coupled a sale of some of the property there situated, with the right vested in the wife as trustee made by him without any order of the court to receive the intervening rents or mining and at a price much less than that fixed proceeds, constitute the entire beneficial in- / by the will, and, of course, within the pro

hibited period. By regular proceedings for 3. PROCESS--PROOF OF SERVICE-PAROL Evithat purpose in the courts of that state, the DEXCE-IDMISSIBILITY. sale was confirmed. Afterwards, under a

Where a judgment roll containing an un

signed return of service on defendant in the suit decree of the Utah court, regularly made, a is offered in evidence, parol evidence of actual distribution was ordered to be made of the service of process on defendant therein is adnet proceeds of this sale to the three chil

missible. for the court acquired jurisdiction of

defendant therein by the service of process and dren, son and nephew, named in tlie first

did not lost it by a neglect to make proof of clause of item 12 of the will, and the suns tlıe same. distrihuted were paid to the several persons [Ed. Not-For cases in point, see ('ent. Dig. accordingly. It is now claimed by the appel

vol. 10, I'rocess, $ 200.] lants that this judgment of the l'tal court 4. JUDGMENT - OPENING AXD VACATIXG-IRis a conclusive adjudication of the validity


Coule Civ. Proc. $ J91, subd. 7, requiring of the provisions of the will here involvedl,

the dismissal of an action on failure of plainbinding not only upon the courts of Utuh, tiff to (aus. the summons to be returned with but also upon the courts of this state and proof of Service within three years after the

commencement of the action, etc., applies to upon all the persons concerned in the es

actions which are untried, and not to actions tate anywhere, and that it determines, in which have gone to judgment, and a judgment effect, that the power of sale given to the rendered against a defendant regularly served executrix may be exercised by an administra

with process will not be set aside because there

is on tile no proof of service. tor with the will annexed, and that it may

[El. Vote--For cases in point, see Cent. Dig. be exercised by him without regard to the

vol. 30, Jurigment, $$ 6S6, 097.) prices fixed in the will and at any time within the forbidden period. To this proposi

Department 2. Appeal from Superior

Court, Butte County; H. M. Albery, Judge. tion we cannot agree. The judgment of the Titah court doubtless is conclusive as to the

Artion by T. B. Jones and another against

E. Gunn in another. From a judgment land sold, and as to the proceeds distributed under it. Possibly it may be binding as to

for defendants, plaintiffs appeal. Affirmed. future sales in that state, and as to the con- Maguire & Gallagher, for appellants. Warstruction of the will with respect to property ren Sexton and F. C. Lusk, for respondents. in that state, but upon this point we express no opinion. We are satisfied, however, that

IIENSIIAW, J. This action was brought it is of no binding force as a general judicial

by plaintift T. B. Jones and his wife, Mary construction of the will to be applied anil

Jones, to quiet title to certain lands described enforced in this state in the administration

in their complaint. Defendants joined issue of assets within the jurisdiction of the

upon the allegations of the complaint, ascourts. It does not constitute an estoppel

serting title in themselves under mortgage against the respondents in the case at bar.

foreclosure proceedings and by adverse posThe juigment is reversed.

session. Judgment passed for them, and

plaintiffs appeal. We concur: ANGELLOTTI, J.; SIIAW, J.

The undisputed facts are that Jones execut

ed a mortgage upon the land to secure the (149 Cal. 687)

repayment of $1,950. The mortgage was fore

closed, judgment was entered in favor of the JONES et al. v. GUNN et al. (Sac. 1.261.)

mortgagee. an order of sale issued, the prop. (Supreme Court of California. Sept. 17. 1906.) erty sold, a certificate of sale given, and the 1. HIOMESTEAD-ACQUISITION-DECLARATION- sheriff's deell of the property executed and DESCRIPTION OF PROPERTY-SUFFICIENCY. delivereil in due course on February 12, 1891.

Under Civ. Code, § 1263, providing that the declaration of homestead must contain a

On Jugust 20, 1891. the defendants, claiming description of the premises, a declaration of

under this deed, entered into possession of the homestead which describes the land as "lying property, and the court found that they had in B. county * * being with other land remained in adverse possession of it ever since. * * * [describing land in a designated township) and all lands owned by the husband of

While the sufficiency of their adverse posthe declarant "in said township” is insufficient

session is disputed, it is not questioned that, for failing to describe all the land claimed as during all the time subsequent to the date a homestead.

of the deed, they have paid all taxes levied [Ed. Note. For cases in point, see Cent. Dig.

and assessed on the land. In 1899 the plaintiff vol. 23, Homestead, § 61.]

Mary Jones forcibly entered upon the posses2. SAME-ALLEGATION OF VALUE.

sion of a dwelling house upon the premises, Civ. Code, 1263, provides that a declaration of homestead must contain an estimate of

and immediately thereafter brought this acthe actual cash value of the premises claimed. tion to quiet title. Her contention has its A declaration of homestead claimed as a home

foundation in the following facts: That, substead other lands than those definitely described. The declarant estimated the actual cash value

sequent to the giving of the mortgage, she of " said property" to be a specified sum. Held

filed a good and sufficient claim of homestead that, as the estimate of the value was, not of upon the land in question; that in the fore. the premises described, but of the property

closure proceedings she was not made a party claimed as a homestead, there was no estimate of value as required by statute.

defendant; and that her homestead claim [Ed. Note.--For cases in point, see Cent. Dig,

is still valid and subsisting. To foreclose vol. 25, Ilomestead, § 61.)

the homestead right of the wife it was, of 87 P.-37

course, necessary that she should have been

lands are claimed, but that they, with other made a party, and it is unquestioned that | lands, and all lands in said township owned this was not done. If, however, her claim by T. B. Jones, are claimed as a homestead. of homestead was itself invalid, this omission No authorities are cited by counsel on either was without significance. The homestead side, and presumably none have been found claim filed by the wife was admitted in evi- on this question. dence, subject to the deterpination by the "It has been held that the description in trial court of its legal sufficiency and validity, a declaratior of homestead need not be more and the court decided that it was invalid. particular than in a conveyance (Ornbaum r. It expressed its views in an opinion, the clear- Creditors, 61 Cal. 455); also that it may conness and cogency of which leave nothing to

tain more than one lot (Id.). But will this be desired, for which reason that opinion is meet the objection here made? The argument here set forth at length and adopted.

is made, and with a great deal of force, that "I also incline to the opinion that no valid the words in the attempted description above declaration of homestead was filed by the

quoted are mere surplusage, and should be plaintiff Mary J. Jones. While it is true that disregarded. But is the court at liberty to homestead and exemption laws are remedial, thus treat the matter? It would seem clear and, generally, must be liberally construed that the declarant claimed other lands than in order to effect the purposes intended those specifically described, as the declaration thereby, yet it is equally true that homesteads

claims as a homestead, 'with other lands, and homestead exemptions are the creatures the lands specifically described. This is emof statute, and that the failure to comply phasized by the concluding words, “and all with any statutory requirement essential to lands owned by T. B. Jones in said township.' a valid declaration of homestead cannot be

These words cannot refer to the lands desupplied by liberal construction. Indeed, the scribed as it is expressly stated that they Supreme Court of this state has generally are in said township, and it is also alleged held that homestead claimants must quite in the complaint that they are owned by plainstrictly comply with the statutory require- tiff's. This is not a case like In re Ogburn, ments as (formerly) to wife's acknowledgment 105 Cal. 97, 38 Pac. 498, in which the de(Beck v. Soward, 76 Cal. 530, 18 Pac. 650); scription clearly discloses the lands intended as to head of family (Reid v. Englehart-Da- to be claimed, for, as stated, it is clear that vidson Mercantile Co., 126 Cal. 527, 58 Pac. the declarant intended to claim other lands, 1063, 77 Am. St. Rep. 206); as to residence

and it is alleged in the complaint that the on premises (Boreham v. Byrne, 83 Cal. plaintiffs in fact did own other lands in said 27, 23 Pac. 212); as to statement of hus

township which are not specifically described band's failure to make declaration (Cunha v. in the declaration. The question is exasperHughes, 122 Cal. 113, 54 Pac. 535, 68 Am. ating, for, if the claim of 'other lands' is St. Rep. 27) and as to estimate of the actual void, and if the words 'with other lands, cash value of the premises, etc., Tappendorff

and all lands in said township, can v. Moranda, 134 Cal. 421, 66 Pac. 491. See, be disregarded, and the declaration be read generally, cases cited in notes to sections 1237

as if those words did not appear therein, and 1263, Civ. Code, Pomeroy's Edition.

then, as regards description, the declaration These requirements must all appear upon the would seem to be sufficient to sustain the face of the declaration, and the omission of claim of homestead. But it does seem to me any one of them from the declaration is fatal

that the lands specifically described are not to the claim of homestead, and cannot be

the lands claimed, but that they, with other supplied by extraneous evidence. 126 Cal.

lands, are claimed, and claimed in such a way 529. 58 Pac. 1063, 77 Am. St. Rep. 206. that the court cannot say what lands are

“Section 1263, Civ. Code, by separate sub- claimed in the declaration as a homestead. division, provides that the declaration must An examination of the homestead records contain a description of the premises, and would not disclose to a third party just what this provision would seem to be as mandatory lands plaintiffs claim as a homestead. as any of the other provisions of said section. "The question may also bear another asTrue, the declaration before us contains a

pect. Section 1203. Civ. Code, provides that description of premises, but does it contain the declaration must contain an estimate of a description of the premises claimed therein the actual cash value of the premises claimed. as a homestead? The declarant states that As already shown other lands than those defithe land and premises on which she resided nitely described were claimed as a homestead. are described as follows: Lying in Butte Now, if we omit the outside lands and disrecounty •* * * being with other land, gard them under the objection to the descrip

[describing land in sec. 30, tp. 22 tions, can we do so to the statutory requireN., R. 4 E.] and all lands owned by T. B. ment as to an estimate of the actual cash Jones in said township.' Is this not a state- value of the premises? The declarant estiment that the declarent claims as home- mates the actual cash value of 'said property' stead lands not specifically described? And to be $1,000. Can this be said to have referis it a statement that she (declarant) claims ence exclusively to the land specifically de the lands which are definitely described ? scribed ?

scribed? Is this not an estimate of value upThe statement is not that the described on all the property referred to in the declara

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