Will—Rules op Construction—Intention op Testator.—The primary purpose of all rules to be applied in the construction, of wills is to ascertain the testator’s intention, not some undeclared purpose which may be imagined to have been in his mind, but the intention disclosed by the words he has used. As an aid to the interpretation, resort may be had in eases of uncertainty, to the circumstances under which the instrument was executed.

Id.—Intent Must Be Declared Even ip TJnlawpul.—Where the intent is plain, the duty of the court is to declare that intent, without regard to the consequences. If the plan adopted by the testator for the disposition of his property cannot be given effect because it violates the rules of law, the court is not ■authorized to substitute for the illegal provision some other which it may suppose would have been adopted by him if he had known that the directions actually given could not be carried out.

Id..—Construction in Favor op Testacy.—Where a will may reasonably be interpreted in two ways, one of which results in intestacy while the other leads to an effective testamentary disposition, the interpretation which will prevent intestacy is to be preferred.

Id.—Trust to Convey Real Property Is Void.—Under section 857 of-the Civil Code, a devise of real estate to trustees in trust to convoy to persons named is void, where the instrument discloses an intent that the ultimate beneficiaries shall take only through a conveyance by the trustees, and that no estate or interest, other than a right to enforce the performance of the trust, is given to them.

Id.—Trust to Convey Accompanied by Words Passing Title Directly' to Beneficiary—Direct Devise.—Where a will contains, in addition to words which, standing alone, would be deemed to create a trust to convey, some expression which might he operative to pass the title directly from the testator to the beneficiary, the will should be construed as making a direct devise, and such devise will be given effect, in disregard of the words importing an invalid trust, and it makes no material difference that the direction for transfer is followed, instead of preceded, by the words indicating an intent to make a direct devise.

Id.—Direction to Convey to Be Deemed Unnecessary.—When words which by themselves import an unlawful trust to convoy are joined with other words which are sufficient to operate as a direct devise of the interest, the direct devise is not destroyed by the fact that the testator may have attempted to provide in addition for an unlawful method of passing title. In such case the provision for a conveyance is to be regarded as unnecessary, except, perhaps, as convenient and additional evidence of title.

Id.—Construction of Wild in Question—Trust to Convey Mot Created—Devises Abe Direct to Beneficiaries as Tenants in Common.—The testator by his will left all his estate which was subject to his testamentary disposition, the same being entirely community property and consisting of both realty and personalty, to trustees in trust (1), “to pay over the net annual income thereof to liis wife during the term of her natural life”; (8), upon her death, “to divide said estate into three equal parts, when one of said parts shall be forthwith assigned, transferred, set over and delivered by my said trustees” to each of two of his sons, “and the same shall be and become Ms absolutely and forever.” (3), “To pay over the net annual income derived from the remaining equal third part to his daughter during her natural life, and upon the death of said daughter, to pay over the principal of said one-third part, with all accumulations of the income therefrom, to her children then living, and so that each child shall receive an equal share thereof, and the same shall become Ms or hers absolutely and forever.” The will further provided that children of deceased children of said daughter should take the share which the parent would have taken had he or she survived said daughter, “and the same shall be divided between said children share and share alike,” and that upon the death of said daughter without child, children or grand-children her surviving, the trustees should pay over the principal of said one-third part, with all accumulations of income therefrom, to his aforesaid sons, share and share alike, “and the same shall become theirs absolutely and forever. It further provided, that if either of Ms said sons should not be living at the time of Ms death or at the time of bis wife’s death, then all the legacies and devises given to him should go to Ms lawful issue, share and share alike, “and the same shall be and become theirs absolutely and forever.’? The trustees were empowered to invest and reinvest the trust estate, and to sell any portion thereof, at their discretion. Seld, that the will did not create a trust to convey, partition, or make allotments of real estate, which would be invalid under sections 847 and 857 of the Civil Code, but, properly construed, made direct devises of legal estates to the beneficiaries as tenants in common.

Id.—Community Property—One Half Vests in Surviving Wife.— Under such will, as the entire estate was community property, an undivided half of the property was all that the testator could, and was all that he attempted to, pass by means of his testamentary disposition. The other half vested at once in his surviving wife.

Id.—Direction to Trustees to Divide Estate—Physical Division or Allotment Mot Intended.—The direction in said will to the trustees to “divide said estate into three equal parts,” does not require them, as a condition to the vesting of the devises in the respective devisees, either to physically subdivide the various parcels of realty owned by the testator, or to appraise the entire estate, real and personal, and allot various parts of it so as to make three shares of substantially equal value; on the contrary, and especially in view of tho fact that the entire estate was community property, an undivided half of which passed to the surviving wife, so that such a physical division or allotment would be impracticable, the direction for a division into three equal parts should be construed as intended to accomplish merely a creation of equal one-third interests in the entire estate and every part thereof—that is to say tenancies in common—for his two sons and daughter, at the same moment of time, that is upon the death of his wife.

Id.—No Undue Suspension of Power of Alienation—Child en ventre sa Mere.-—So construed, the will effects no undue suspension of the power of alienation upon the death of the testator’s widow. As tho direct devises, vesting at the death either of the testator’s widow or of his daughter, are given to all of the ultimate beneficiaries, the fact that among the takers there may be a child en ventre sa mere, does not effect an undue suspension of the power of alienation.

Id.—Meaning of Word “Divide.”—The word “divide,” in and of itself, does not import an actual physical segregation into distinct shares. It is, when uged in such phrases as “to be divided between,” or “divided in equal shares among,” or the like, very commonly used to express an intention to give interests to persons as tenants in common. So, also, such phrases as “equal parts,” or “equal third parts,” or “third parts,” are entirely appropriate to indicate a tenancy in common.

Id.—Direction to Divide Imposes Mere Obligation to Deliver—Implied Duty of Trustees, if Expressed in Will, Does Not Create Invalid Trust.-—The direction to the trustees to divide the estate into interests held in common, and to assign, transfer, set over, and deliver, imposed upon them merely the obligation which would rest upon any trustee, at the termination of his trust, with respect to property which then passed in undivided interests to two or more persons. It would be his duty to deliver such property to the parties entitled, and to that end to make such division as is involved in the act of turning over an undivided share. Such duties being implied, they may be conferred by the testator without violation of the provisions of sections 847 and 857 of the Civil Code.