Appeal from decree of final distribution, and from an order denying appellants’ motion for a new trial.

The will of deceased was duly admitted to probate and bears date, “May twenty-fifth, eighteen hundred and fifty-nine.” It contains the following clause:

The court below found that Mary Montealgre (the only daughter of said deceased) died without lineal descendants prior to the death of deceased; that the provisions of the will above quoted are invalid, and the trust thereby attempted to be created is void, for the reason that the absolute power of alienation of the property therein mentioned is thereby suspended for a longer period than during the continuance of the lives of persons in being at the creation of such limitation or condition, or at the death of said testator, capable of taking the same under said provisions, and for the reason that there were and are no persons in being by whom an absolute interest in possession can be conveyed; that the period of the said trust expired and ceased prior to the death of the testator, and that said trust clause is void for uncertainty.

The deceased left surviving him his wife and two sons, Luke Pay and John Pay, his only children. After the death of deceased Bridget M. Pay, his widow, and the mother of Luke Pay and John Pay, conveyed all her title and interest in the estate to John Pay, and such conveyance was made pending the administration and prior to the decree of distribution. The property was distributed to the two sons,. Luke Pay and John Pay.

The contestants are Mary J. Scott, the sister of deceased, and her children, being the sister and her children named in the said trust clause of the will.

The main question in the case is as to the validity of the trust clause, and if the clause is void the decree should be affirmed. We are of opinion that the court correctly held the trust clause void. It provides for an absolute period of twenty-five years for its continuance, during which time the power of alienation is suspended. The testator had three children, who were in being at the time he made the will, and he had the right to suspend the power of alienation during the continuance of their lives, but he did not limit or suspend the power of alienation during their lives only. He suspended it for twenty-five years. If they should all die before the expiration of the twenty-five years, he suspended the power of alienation still for twenty-five years. He directed the income to be paid to “their children if they should have any.” Our code expressly provides that the power of alienation cannot be suspended by any limitation or con dition whatever for a longer period than during the continuance of the lives of persons in being at the creation of the limitation or condition. That every future interest is void in its creation which by any possibility may suspend the absolute power of alienation for a longer period than is prescribed in the chapter on alienation. (Civ. Code, secs. 715, 716.)

The court has often discussed and upheld these sections, and it is only necessary to cite two of the leading cases—In re Walkerly, 108 Cal. 627 , [ 49 Am. St. Rep. 97 , 41 Pac. 772 ]; Estate of Fair, 132 Cal. 523 , [ 84 Am. St. Rep. 70 , 60 Pac. 442 , 64 Pac. 1000 ].

In view of what has been said the findings as to whether or not the property was community property, and the rulings in relation thereto, become immaterial. Whether the property was all community property, or all separate property, it vested in the widow of the deceased and his two sons. The widow having conveyed her portion to John Fay, the decree of distribution properly distributed that to him.

The decree and order are affirmed.

Kerrigan, J., and Hall, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on April 11, 1907, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 13, 1907.