Gesina Werner died in the year 1906 in San Francisco, leaving a last will and testament, admitted to probate, which contained the following trust provision:

The five grandchildren of the deceased are made the residuary legatees of said estate by reason of said trust clause. *227 Counsel for Willie Menne and Walter Menne, two of said grandchildren, have attacked the validity of said trust clause on the ground that the power of alienation is suspended beyond the lives of persons in being at the time of the creation of the trust. Should this contention be upheld by the court, Ida Hansen, Alice Brough and Mabel Werner, the other three grandchildren, would be cut off entirely in sharing in said estate, and Willie Menne and Walter Menne would receive between them one-half of said estate, and the other half of said estate would go to the parents of said Ida Hansen, Alice Brough and Mabel Werner.

It is conceded that the provisions of the will providing for accumulations beyond the period of majority are void: Civ. Code, sec. 723.

The accumulations thus derived will be distributed among the heirs at law. In the present case one-half of such accumulations will go to Louis Menne, and the other half to Willie Menne and Walter Menne: Civ. Code, sec. 733.

In the matter of the trust clause the petitioners contend that it is invalid, and should be disregarded: Estate of Walkerley, 108 Cal. 627 , 49 Am. St. Rep. 97 , 41 Pac. 772 .

It is the accepted rule that the power of alienation is suspended when the trustees, acting within the exact limits of the powers granted to them, uniting with the beneficiaries cannot convey the fee. Hence, if the power of alienation be, by the terms of the devise, so suspended that during lives in being at the inception of the trust a fee may not be conveyed by the trustees and the beneficiaries, then it follows the trust must be held void.

Here we find a trust to hold during certain lives in being, namely, the five grandchildren of the testatrix, and such a trust would be valid if nothing further followed, and it is to that which follows that the objection is pointed.

The will provides that if any of said grandchildren die unmarried and without children before all the grandchildren reach the age of twenty-five years, then the portion of such dying grandchild shall vest in the survivors. It will at once be notice that the vesting of such interest can only take effect upon the death of the party entitled unmarried and without issue, and hence the death of one of the grandchildren mar *228 ried or with issue would necessarily result in the holding of the estate by the trustees beyond the lives in being at the inception of the trust. The trust requires the trustees to hold the estate according to the directions of the will, and in view of such a provision the trustees would continue to hold after the death of a married grandchild, or one dying with issue, and such holding would be beyond lives in being, and there could not have been at the inception of the trust any person in being who could have united with the trustees in conveying a fee.

As a further objection to the trust clause in question, it is urged that the payment of $500 to each of the grandchildren is made to await the arrival of such division at'the age of twenty-five years, and the estate cannot be divided until “after payment of such bequests shall have.been made to each of my said grandchildren.” Hence, it follows that the distribution of the estate is postponed until the arrival of the youngest survivor at the age of twenty-five years, and if, in the meantime, one of the older grandchildren should die married, or leaving issue, the trustees would be obliged to withhold from the widow or children the portion coming to her or them until all the survivors reach the age of twenty-five years, or, in other words, the power of alienation granted to the trustees and coming by inheritance to the widow or issue would be restrained until all the surviving grandchildren reached the prescribed limit. The trustees could not convey a fee, and the widow or children uniting with the trustees would be equally powerless, for the reason that no estate could vest in them until the youngest of the surviving grandchildren had reached the age .of twenty-five years.

For the foregoing reasons the court is of the opinion that the prayer of the petitioner should be and it is granted.