John S. Doe died January 21, 1894, leaving a widow and child, two brothers, two sisters, several nephews and nieces, and other collateral kindred. He had made a will, dated January 26, 1892, and a codicil dated November 21, 1893, which were admitted to probate February 9, 1894. The entire estate was the separate property of decedent, and was appraised in 1894 at $1,383,184, and in the final account set down at $1,954,317.

*61 The executors named in the will, his brothers, Bartlett Doe and Charles F. Doe, immediately qualified and acted jointly until January 16, 1904, when Charles died, and thereafter Bartlett acted alone until March 16, 1905, when he filed his final account and petition for final distribution to the persons entitled thereto.

To this petition the former widow, now remarried, made response, claiming that decedent died intestate as to all the property which he owned except what was disposed of by the second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth and eleventh paragraphs of his will, and she asked, therefore, that there be distributed to her in fee simple absolute one-half of all his estate not included in the clauses enumerated.

The codicil confirms the will down to the twelfth paragraph, which it revokes, substituting therefor other provisions.

The paragraphs necessary to consider are here inserted.

The will contained the following provisions:

In the codicil to the will it is provided:

The purpose of testator is patent. Whether or not he has legally accomplished that purpose, is the question. For ten years the trust remained unassailed, but now it is challenged as invalid because it is contrary to the code, as (1) the term is not properly constituted, (2) the devise to the trustees “for” the widow and daughter is void, (3) the direction to the trustees to pay taxes, street assessments and other charges out of the income is a direction for an unlawful accumulation, (4) the gift of income annually is a gift of an unlawfully accumulated fund and is void, (5) the direction to the trustees to pay over the residue of the income after deducting moneys expended for purposes shown to be unlawful is void, (6) if the mode in which the testator has framed his gift fails for illegality, the court cannot provide a valid mode in order to effectuate his intent; (7) the trust to pay the residue of the income to the executor, followed by the direction to the executor to pay it to the widow and daughter, is void; (8) the subsequent limitations of the trust property fall with the illegal trust, for 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; (9) there is no devise over of the trust property in the event of the failure of the trust; (10) the gift is contingent “upon the termination of the trust”; the court cannot transmute it into a vested remainder; (11) the intended mode of passing the property has failed for illegality, and the court cannot supply a valid mode; (12) the property embraced in the void trust does not pass under the third paragraph of the codicil; (13) the trust which the testator has attempted to create in *66 the third and fourth paragraphs to the codicil is void (14) the trust to distribute is unauthorized by section 857, Civil Code.

We are reminded in undertaking to construe this instrument of the duty of the court to disregard the design of the testator unless it comports with the rules of law. The function of the court is to determine the intention of the testator and then to apply the canons of construction, and not to constitute a valid for an invalid devise. We are told that the best method to be pursued in such case is that in Cunliffe v. Brancker (L. R. 3 Ch. D. 399), where Sir Geo. Jessel said:

Of two modes of interpreting a will, says the code, that is to be preferred which will prevent a total intestacy; but the supreme court has said that if the legal effect of the expressed intent of testator is intestacy, it will be presumed that he designed that result. If a fair interpretation of the will results in total or partial intestacy because of rules prohibiting the devises attempted, the court may not alter the construction to avoid or evade that consequence.

The first point made by respondent is that the trust is necessarily void for the reason that its term is not properly constituted, as the trust attempted to be created is measured by the lives of two persons—the two trustees—and by the life of the survivor of them, and neither of said persons had any beneficial interest in the trust whatever. It was not to cease *67 with the death of the widow or the daughter, but was intended to continue during the lives of the trustees, whether the daughter should die or whether the widow should die, or whether they both should die during the lifetime of these trustees. Upon this point it is argued that the meaning of the testator is manifest. The authority for this proposition is Downing v. Marshall, 23. N. Y. 377, but it seems that that decision has been discredited in later cases and declared dictum. At the time, however, that the California codifiers copied from the New York law the present code provision, that case was supposed to be sound, and, it is asserted, should be received as controlling in this court, for it is a general canon of construction that if statute adopted from another state had been construed by the courts of that state prior to its adoption here, the same construction should be given ordinarily in this state, but this rule has not always been followed, and has been modified in cases, as, for example, where the courts of the state from which the statute had been taken have since altered their opinion as to its construction. The rule is not an absolute one, especially where there is but a single decision, and that subsequently discarded as authority in the same state. When, therefore, it is argued that at the time we took our statute of uses and trusts from New York, we accepted the construction given in Downing v. Marshal, the answer is acute that, as the appellate tribunal of that state has renounced that case as authority, it has no force here, and it being the sole support of respondent on this point, his contention is without basis. $■

It is not the wish of this court to lengthen its opinion by extracts from cases, but, so far as petitioner relies upon Downing v. Marshal, it would seem that the views of that case cannot govern here: Crooke v. County of Kings, 97 N. Y. 421 ; Bailey v. Bailey, 97 N. Y. 467 .

These cases are substantially identical, and in the latter one, as counsel for respondent says on page 63 of brief, the judge writing the opinion saw fit “to criticise in a hostile manner the decision of Downing v. Marshall and implies that the opinion in that ease relating to the lives measuring the trust was dictum.”

*68 It is worth while, perhaps, to make this criticism clear in connection with the ease at bar, to quote from the opinion, which was concurred in by all the judges:

Counsel for respondent rely absolutely upon Downing v. Marshall, and quote this passage to illustrate this point:

Counsel contend that section 857, subdivision 3, of the California Civil Code is even more explicit in this connection than is the section of the New York Revised Statutes cited in the foregoing extract. Subdivision 3 of section 857 of our code is identical with subdivision 3 of section 285 of the proposed Civil Code of New York, the so-called “Field Code,” printed 1865, which had been revised in view of Downing v. Marshall, and counsel insist that thereby our code must be construed in the light of that decision; but we have seen that this rule is not uniform, and that our code provision, *71 though taken from New York, receiving there the construction claimed before its adoption here, such decision does not necessarily control; it may be persuasive, but not conclusive.

Depending upon that decision, respondent asserts that the trust here is void, for it does not rest on the lives of the beneficiaries ; the widow and daughter may both die; the executors, to whom the payment of income is to be made in the first instance, may change from time, to time and die, but the trust is to terminate only upon the death of the surviving trustee; but this view does not accord with the accredited authorities cited, which declare that the inherent character of the trust and its essential limitations may form an element in the construction to be given to the language creating it. As said in Crooke v. County of Kings, “that character and those limitations are such that the trust cannot exceed in duration the lives of the beneficiaries, because upon their death its purpose is accomplished, and a trust supposes a beneficiary, and so its very creation implies necessarily, without express words, a termination at such period. If, then, in creating the trust, one or two lives of persons not beneficiaries are designated as its measure of duration, it follows that such designation can never be intended to lengthen the trust beyond its possibility of existence, and that the language which confines its benefits to persons who are or may be living, sufficiently indicates an intention to end it at their deaths, unless it is earlier terminated by the close of the selected life, or lives. And when, in the present case, the vesting of the fee was fixed at the death of the trustee, the close of the selected life, that must be read and construed in connection with the other necessary limit indicated by the language declaring the purpose of the trust, and held to mean that the vesting- is to take place at the end of the designated life, or at the period less than that marked by the earlier death of all the beneficiaries. We are not to gather, from the language of the will, the absurd and destructive intention to continue a trust beyond the limit implied by its own nature and inherent character, unless compelled to it by the language which will admit of no other interpretation.”

*72 The language of the trust does not necessarily bear the meaning attributed to it by respondent. We should not destroy the trust, unless there is no other recourse in interpreting the words of testator. If the words of this will can be construed to preserve its purpose, the court should not be swift to subvert it.

The intention of the testator was not to create a trust to continue beyond the life of his wife and child. Such a construction does not seem to this court reasonable. The assumption appears to have been that they would survive the trustees. Certainly the duration of the trust cannot be assumed to be beyond the lives of the beneficiaries, for it was possible that they might predecease the trustees, in which case the trust would terminate.

Upon this point, the court cannot sustain the contention of respondent.

What was the object of this trust? To pay over the rents and profits to the surviving wife and daughter. When they die, it ceases, because the object is accomplished. When the purpose for which an express trust was created ceases, the estate of the trustee also ceases: Civ. Code, sec. 871. The measure of the estate of the trustees is the necessity of the trust, and in mating the provision for the payment of the income it is certain that only the mother and daughter were intended as recipients, and, therefore, the trust term could not extend beyond their existence.

Is the devise of the trustees “for” the widow and daughter void? Respondent relies upon the case of Wittfield v. Forster 124 Cal. 418 , 57 Pac. 219 , but after a careful reading of that case this court fails to see its application. The syllabus shows with sufficient clearness that the case cited is not analogous to the one at bar. “A conveyance of all the real and personal property of the grantor to a trustee in trust for an unincorporated association named, to have and to hold to the trustee named, ‘his successors and assigns, forever,' without further specification as to the purpose of the trust, or as to the duration of the estate, or as to the nature and quantity of interest of the beneficiaries, or as to the manner in which the trust is to be performed does not create a valid trust as to the real property, within any of *73 the provisions of section 857 of the Civil Code, and under section 2221 of that code, the whole trust, both as to the real and personal property, is void for uncertainty.” In the case here there seems to be a substantial difference. In that case there was a devise “in trust for” another. There were no trust purposes specified and no other duties imposed upon the trustee. It was a bare trust for another. In this case, while the language is “in trust for” others, the trust purposes are specified and trust duties are imposed.

Is the direction to the trustees to pay taxes, street assessments and other charges, and expenses incurred in improvements out of the income a direction for an unlawful accumulation? This point has been presented with fullness and force by counsel for respondent, who, while admitting that, generally speaking, it is undoubtedly the rule that a direction for an invalid accumulation is void only pro tanto, and passes over the income to the owners of the next eventual estate, insist that the peculiar effect of the void provision here is to render void the entire instrument. Great stress is laid upon this provision, and it is argued that assuming the power to be susceptible of being construed as a trust purpose, the trust is annually to pay over and deliver to the executors the rents, issues and profits of the trust property that may remain after paying all taxes, street assessments or other charges upon the same and expenses incurred in making improvements thereon. This is not a trust to pay over rents and profits, but only to pay over what may be left of the rents and profits after the same have been applied to the payment of the items mentioned.

Each case of this class must be considered according to its own circumstances, and the expressions of the testator should not be interpreted in a manner subversive of his intention unless that be plainly contrary to law. As was said in a case recently decided by our supreme court, Matter of Heywood, “in construing testamentary dispositions of property, it is a cardinal rule, that a liberal construction should be given to them, and all reasonable intendments indulged in, with a view of sustaining the purpose which it is disclosed the testator had in view. No particular form of expression is necessary to constitute a valid trust. It is sufficient that, *74 from the language used, the intention of the testator is apparent, and that the disposition in trust which he endeavors to make of his estate is consistent with the rules of law. The intent of the testator is the matter for primary consideration, and it is immaterial what method of expression is employed as long as that intention can be ascertained.”

In Hill on Trustees, 101, it is remarked that it is one of the fixed rules of equitable construction that there is no magic in particular words, and our appellate court has declared that it is, of course, “a fundamental principle that a construction of a will favorable to testacy will always obtain when the language used reasonably admits of such construction, and that it will not be held to contain a void trust unless the invalidity of the trust is beyond question .... and cannot be reasonably construed otherwise”: Estate of Dunphy, 147 Cal. 95 , 81 Pac. 315 .

It is insisted in the case at bar that the trusts are void, being for purposes not specified in section 857 of the Civil Code, and as they are inextricably interwoven with the trust to pay the remainder of the rents, that trust falls with them.

If we are to be guided by the explicit indication of the purpose of the testator, it would be doing violence to his intention so to construe the terms of the will in the trust under consideration. He devised the specifically described properties to trustees for the benefit of two beneficiaries, his wife and daughter. The provisions clearly indicate that it was the intention of thé testator that they should receive the income from the trust property.

What were these trustees to do in the management of this trust? It clearly appears that the motive was the maintenance of the minor and her mother. They were to receive the rents, issues and profits after the discharge of incidental expenses, such as are set forth. They alone are entitled to the income from the trust property, and they are entitled in due season to the corpus of the trust estate. It is argued that the direction of the will to discharge out of the income the costs and expenses incurred and incident to the administration of the trust is void, and that no matter how clearly a testator may have expressed himself in this regard, his intent cannot prevail; in other words, the essential purpose *75 of the trust is to be sacrificed to the incidental necessities of its fulfillment. It is the duty of the trustees to hold the property and administer it; subject to the trust, the estate is vested in them. How can they discharge their duty if they are restricted to the extent contended for by counsel? Even if this part of the clause were invalid, it is not so inextricably interwoven or so essentially a part of the trust scheme that all the other trust provisions would fall if it could not be sustained. In any event the entire income would go to mother and daughter. That is the express direction of the testator. If he authorized an invalid accumulation of a portion of that income, that provision failing the amount would necessarily be payable to them. The invalid clause is not an integral part of the scheme; it is a provision entirely separable from it; it is plain that the primary trust would be unaffected and the primary purpose of the testator fulfilled, even if this direction should be held void; but for the reasons suggested, it seems to this court, that, in the circumstances of this ease, the direction is not unlawful.

It is contended that the provision for retaining the income and paying it over annually is void; but this is a mere matter of management, and it seems to this court that to accept this argument would be to carry the doctrine invoked to an extreme. Where the entire net income is distributed annually, the courts have held that there is no accumulation. The purpose of the statute is to prevent permanent accumulations, not to interfere with judicious management. The cases are numerous on this point and citations need not be multiplied.

Counsel are insistent upon the proposition that the testator did not give to his widow and his child the whole income of his estate, but only the residue after certain charges were to be paid, and that, therefore, the direction to the trustees to pay over the residue of the income after deducting moneys expended for purposes shown to be unlawful is void; and, hence, if the mode prescribed is illegal, the court cannot substitute a valid mode, no matter how obvious his intent; and, that the trust to pay the residue of the income to the executors by them to be paid to the widow, is *76 void; and that the subsequent limitations of the trust property fall with the illegal trust, for the reason that they are inseparably blended. These points might be judicially treated at greater length, but it would serve no purpose, since their substance has been discussed in the preceding pages. This court does not agree with counsel for the widow in the conclusions they deduce and apply from the abstract rules of law. As counsel say, the scheme of the will is perfectly clear; but they claim that the testator would not, if properly advised, have made the disposition that he did, for they believe that he would not have liked the idea that at the age of eighteen years this child would have come into the whole of this vast estate, for he manifested regard for and confidence in his widow, and it seems likely, if they could indulge in speculation, that he would have preferred in such circumstances that the mother of his child, her natural protector, should.have one-half of his property. But this is speculation on the part of counsel. What testator meant is to be tested by what he said.

In the paragraph of the codicil which creates the trust embracing specific property, it is provided that, “upon the death of the survivor or last of my said trustees, and the termination of the trust hereby created, I give, devise and bequeath to my said wife Eleanor and to my said daughter Marguerite” all the property embraced in the trust, “provided, however, that the interest hereby devised to my said wife Eleanor to be for and continue during her lifetime, and upon her death to go to my said daughter Mary Marguerite.”

It will be observed, therefore, that, subject to the devise of the trustees, all of the property embraced within the trust was devised to the widow and daughter, one-half to the daughter absolutely and the other half to her, but subject to a life estate in her mother. Such a devise is perfectly valid.

“A future estate may be limited by the act of the party to commence in possession at a future day, either without the intervention of a precedent estate, or on the termination, by lapse of time or otherwise, of a precedent estate created at the same time”: Civ. Code, sec. 767.

*77 Nor would the estate devised to the wife and daughter of the testator be defeated by the invalidity of the devise in trust of the intermediate estate. The rule that a future estate is not affected by the destruction of a precedent estate is recognized in the following provisions of the Civil Code:

Counsel for the widow argue that there is no devise over of the trust property in the event of the failure of the trust, and that the gift is contingent "upon the termination of the trust" and that the court cannot transmute it into a vested remainder, but this argument seems to be answered by saying that the testator did not contemplate a contingency such as is suggested; he must have assumed the validity of the trust and that it would terminate upon the death of his brothers, naturally anticipating that the widow and child would survive them. The event upon which the estate of the beneficiaries is limited is certain, the death of the trustees; the time is uncertain. A future interest is contingent, whilst the person in whom, or the event upon which, it is limited to take effect remains uncertain: Civ. Code, sec. 695.

In this case neither the persons to whom the future estate is limited nor the event are uncertain. The sections of the Civil Code controlling this point may here be inserted.

*78 A present interest entitles the owner to the immediate possession of the property: Section 689.

A future interest entitles the owner to the possession of the property only at a future period: Section 690.

A future interest is either: 1. Vested; or 2. Contingent: Section 693.

A future interest is vested when there is a person in being who would have a right, defeasible or indefeasible, to the immediate possession of the property upon the ceasing of the intermediate or precedent interest: Section 694.

Section 695 as above quoted.

The argument against the widow that the estate devised to the beneficiaries is a vested remainder—one vested in interest, but postponed in possession, seems to be supported by these sections.

If this be so, it follows that the surviving wife and daughter take a vested remainder in the specifically described properties.

Counsel for the widow contend that the trust declared in clauses 3 and 4 of the codicil is void, and say that these paragraphs contain the entire provisions of the trust. These paragraphs are identical with 12 and 13 of the original will, but paragraph 5 of the codicil is new. Paragraph 6 appoints Bartlett and Charles F. Doe without bonds as executors and trustees, and 7 requests to employ Daniel Titus as their attorney. Paragraph 8 follows and that is practically the final clause, and provides that the executors pay to his wife monthly, until his daughter arrives at the age of eighteen years, the sum of one thousand dollars for the following purpose to wit: Five hundred dollars for the support of his said wife, and five hundred dollars for the support and maintenance of his said daughter. Counsel argue that the relative position of these clauses raises the strongest kind of a presumption against any connection between them, and that the only rational construction of paragraph 8 is that it is an attempt by the testator to prescribe the amount of family allowance which should be paid. If, however, the provision for maintenance is to be executed, it must be out of the residuum. There is no other way of carrying out the purpose of the testator. This duty was imposed upon them as executors. It was an active duty and such as usually *79 pertains to the office of trustees, and such they must be deemed to be for the performance of these duties. This seems to be the essence of the authorities on this point. It does not seem to this court that the position of the clauses in the will shows that in the mind of the testator they had no connection. He certainly designed that his wife and daughter should be supported out of the estate, and recourse to the residuum was the only means by which that object could be accomplished. That was his evident purpose, and a strained construction should not be resorted to to defeat his design.

It is contended with confidence that the trust herein is to distribute and is, consequently, void, but this court cannot accept this contention for reasons already advanced. Even if this residuary trust were invalid, the effect would not be fatal to the devise to the mother and daughter. It would simply shorten the period of possession; to translate the technical terms of the law, they would arrive earlier at their enjoyment of the estate; the intermediate estate being out of the way by reason of the assumed intestacy as to that, the beneficiaries would come immediately into their own; that is to say, the daughter would have her half at once in fee, and the mother hers for life with remainder to her child.

It is said sometimes that the trust statutes should be construed rigorously, and that the law does not favor trusts of this character; but this is not the general rule of construction established by the codes. On the contrary, the rule of the code is that its provisions should be liberally construed. The interpretation of the instrument should be benignant and conservative, not destructive. Having ascertained the intent of the testator, and here it is obvious, we should not be too industrious in seeking reasons for its nullification.

This court is of opinion that the trusts created in and by this instrument are valid, and that the distribution should be decreed in conformity with the terms of the will.

The Buie Against Perpetuities is the subject of a note in 49 Am. St. Bep. 117-138.

And the Severability of Perpetuities and Forbidden Trusts is the subject of a note in 64 Am. St. Rep. 634 -646.