Merritt

I concur on the ground that the judgment in Sutro v. Merritt was valid and binding. Even if it did not control the action of the court in probate so as to require a distribution directly to the heirs, it had the effect of conclusively determining the title of the heirs as against the trustees and others claiming under the alleged trust. A distribution to the trustees would, by virtue of the prior judgment, have inured to the benefit of the heirs, and the probate court properly concluded that it might make .final disposition of the rights of the parties by decreeing distribution to the heirs in the first instance.

Upon the validity of the trust, as an original question, I express no opinion.

Rehearing denied.

Adolph Sutro died in the city of San Francisco August 8, 1898, leaving a last will and testament dated May 22, 1882. He left surviving him six children, and died the owner of a large amount of property. To his children he bequeathed the sum of ten thousand dollars each, and the residue of his estate, specially exempting, however, from said residue a portion thereof consisting of about 1200 acres of land within the city and county of San Francisco known as a part of the Cliff House Ranch and a part of the San Miguel Rancho, which the testator devoted to charitable uses under a trust for that purpose which he assumed to create in his will, and which tracts were referred to in his will as numbered I and II.

The clauses of his will as to such trust, material to be considered here, are as follows: By paragraph XXV thereof tíxe testator declared: “I will and direct that the title in fee of said parcels of land marked I and II last hereinbefore described and each thereof shall go in trust into the hands of my executors, to be by them preserved and managed for and during the period of ten (10) years after my death, and then by my executors to be conveyed in trust, to the board of…