Chipman

—The fifth clause of the will of the testatrix devised the residue of her property, consisting wholly of real estate and embracing nearly the entire estate, to the executors as trustees in trust for certain purposes specified therein. Upon a former appeal in the matter of this estate *755 this court held that the devise in trust was to be performed by the executors in their capacity as trustees and not in the course of their administration of the estate as executors. (Estate of Phelps, 179 Cal. 703 , [ 178 Pac. 848 ].) As a consequence, the performance of the trust could not effectually begin until after the distribution of the estate. The present appeals result from the order of the court made upon a petition for such distribution. The court below held that the trust was void and that the decedent died intestate as to the residue, and thereupon distributed the estate to her legal heirs. Prom this order the persons named as trustees appeal in case numbered 9177 and Eugenie H. Schroeder, a sister of decedent and a beneficiary of the trust, appeals separately upon the record presented in case numbered 9210.

The general plan of the trust is that the trustees shall sell the property…