This is an action to quiet title. Plaintiffs claim as grandchildren and heirs at law of Rebecca Cummings, deceased. The defendants are sons of Rebecca Cummings, and deraign title through a deed of trust executed by their mother. The action was commenced after the death of Rebecca Cummings, and was founded upon the view of the plaintiffs that the deed of trust was void. The trial court so held and refused its admission in evidence. From the judgment which followed in favor' of plaintiffs the defendants appeal.

The deed of trust was a conveyance to the son, William Cummings, upon certain trusts, which need not here be specified, since they concern the disposition to be made of the property and its income during the life of the trustor, and were executed and terminated upon her death. The third and fourth clauses of the instrument are as follows:—

The trial court took the view that the trust to Lewis B. Cummings could not be distinguished from the trust to convey, condemned and declared void in the Estate of Fair, 132 Cal. 523 , and in this construction we think the court was correct. It is declared as to Lewis B., that the trustees shall “make a deed” to him, and that the title to the property shall not vest in him except as thus provided. There appears to have been thus designedly created a trust to convey, a trust whereby the title to the property should vest, and could only vest, in Lewis B. upon the execution of the deed, and, in fact, as we read appellants’ brief, they declare that an examination of the situation of the parties to the instrument and the surrounding circumstances would show that, because of existing differences between Lewis B. Cummings and his wife, his mother “tried to place him in a position where his interest could not be sold under execution, or where the purchaser under such a sale could not demand of the trustee a conveyance as the successor of his title.” But, apart from these extraneous considerations, the instrument itself, as we have said, clearly manifests its intention, and ex industria creates •a prohibited trust to Lewis B. Cummings.

The trusts over, in the event that Lewis B. should die failing to exercise the power of testamentary disposition, are not ■obnoxious to the same objection. It is provided by them that ■upon the contingency arising, the “property shall vest” and '“the title shall vest in the other son, or in his surviving children, following which there is a provision that the trustee '“shall convey the same to the children absolutely,” and the •trust shall terminate. The distinction between the trusts over and the trust to Lewis B. is broad and well defined. As to Lewis B., the property and its title cannot vest in him excepting by the conveyance. In- the trusts over the title vests absolutely under the terms of the instrument, and the added provision that a conveyance, shall be made amounts to nothing more than an assurance of title. In the trusts over, therefore, there are apt words granting and conveying title by the act of the trustor under the instrument itself, while in the case of Lewis B. the only title which he is to receive is from the trustee, and none whatever from the act of the trustor.

But while the trusts over, in the event of Lewis B. Cummings’s death, are not obnoxious to our law governing express trusts, yet they are absolutely dependent upon the void trust to Lewis B., and must fall with it. Nor can it be said that the provisions of the other trust to William can be given •effect without doing injustice to the intention of the trustor. The whole instrument, therefore, comes under the well-settled rule, that where valid and invalid provisions are so blended that it is impossible to separate them and give effect to the one without doing violence to the intention of the trustor, the whole trust must fall. (Carpenter v. Cook, 132 Cal. 621 ; Estate of Fair, 136 Cal. 79 .)

For the foregoing reasons the judgment appealed from is affirmed.

McFarland, J., Van Dyke, J., and Lorigan, J., concurred.

We dissent upon the ground that the case is distinguishable from the case of Estate of Fair, 136 Cal. 79 .

Beatty, C. J., Shaw J., Angellotti, J.

Rehearing denied.

84 Am. St. Rep. 70 . 84 Am. St. Rep. 118 .