Carpenter

—This action was prosecuted by plaintiffs to quiet, against defendants, their title to certain real estate, plaintiffs claiming the legal title to the estate as trustees, —1. Under a deed of trust executed by one Amasa P. Willey in his lifetime; and 2. As trustees under the will of said Willey, by the terms of which he devised to them the property in question, upon the trusts declared in a deed of trust exected by him in his lifetime. By its judgment the court decreed, — 1. That the trusts created by the deed of trust were void, and that consequently, under this instrument, the trustees had no title; 2. That whether or not they had title by virtue of the will was a question to be resolved in the first instance by the court in which administration of the estate of Willey was pending. From the judgment thus rendered against them plaintiffs appeal.

Upon this appeal we are concerned solely with the question of the validity or the invalidity of the trusts declared by the deed. Of those trusts, one was to operate during the lifetime of the settlor; the others were to operate upon and after the death of the settlor, upon the “residue ” of the trust property remaining at his death. As…

— I concur in the judgment and in the opinion of Mr. Justice Henshaw. It is well to notice, however, that in Estate of Willey, 128 Cal. 1 , the first clause of the deed to Carpenter and Boericke was not attacked on the ground that it attempted to create a trust not permitted by section 857 of the Civil Code. Moreover, in Estate of Willey , which dealt entirely with the will, the question whether or not said first clause of the deed was valid was immaterial. The will, of course, did not take effect until after the death of the testator, and the reference, in the will, to the deed embraced only those trusts declared in the deed which became operative after the testator’s death; and for the uses and purposes •of these latter trusts he devised and bequeathed to Carpenter and Boericke “all the property, real and personal, ... of which I may die seised or possessed.”

Rehearing denied.