can be distinguished, but the above are sufficient to deprive the case cited of the force claimed for it by petitioner.

To recapitulate: The evidence shows that Wallace was authorized to employ laborers for petitioner, and acting under that authority and as the agent for the corporation, he did employ the applicant to do work for said petitioner, and while so engaged as such employee in the very work for which he was employed said applicant was injured. Not only would we be entirely unwarranted in annulling the award, but it should be said that under the evidence the commission could not have reached a different conclusion.

The award is affirmed.

Chipman, P. J., and Hart, J., concurred.

[Civ. No. 1725. Third Appellate District.-October 16, 1917.] LYELL K. ALDERSLEY, Appellant, v. JULIA A. McCLOUD et al., Respondents.

TRUSTS-VOID TRUST TO CONVEY-SEPARABILITY OF VALID FROM INVALID PROVISIONS.—Although the trust to convey contained in a deed of real property to trustees, with directions to apply the income for the use and support of a child of the trustor for life and after his death to convey the fee to the other children, was void under section 857 of the Civil Code before its amendment (Stats. 1913, p. 438), a provision authorizing the trustees to sell the property before the death of the life beneficiary if they "deem it necessary or if it becomes advisable. . . upon such terms and price as they may deem best and for the interest of their trust," is not inseparably connected with the invalid trust, but gives the trustees a valid discretionary power to sell, and a sale made by the trustees during the existence of the equitable life estate was valid. ID.-IMPLIED DIRECTION TO APPLY PROCEEDS OF SALE.-The power to sell in such case is not invalid for failure of the deed to contain any direction as to the application of the proceeds after any sale, because the direction to apply the income of the property in its changed form according to the terms of the instrument creating the trust is clearly and unquestionably implied.

ID.-CONVEYANCE BY ONE TRUSTEE OF HIS INDIVIDUAL INTEREST-ESTATE AND POWERS OF SURVIVING TRUSTEES.-The fact that one of

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the trustees executed a deed conveying whatever individual interest he had in the trust property, as an heir of the trustor, could not have the effect of destroying the clear right to sell, which continued to exist in the surviving trustees.

APPEAL from a judgment of the Superior Court of Butte County. H. D. Gregory, Judge.

The facts are stated in the opinion of the court.

Clarence N. Riggins, and George F. Jones, for Appellant.

Carleton Gray, for Respondents.

HART, J.-This is a suit in partition, the object of which is to secure a decree partitioning and dividing between the parties hereto, according to their respective interests therein, the three several tracts of land specifically described in the complaint. These several tracts of land are separately described in as many subdivisions of paragraph 3 of the complaint.

The court made and caused to be entered an interlocutory decree whereby it directed the partition between the plaintiff and the defendant, Julia A. McCloud, of the tract described in subdivision 3 of paragraph 3 of the complaint and dismissed the action in so far as it relates to the other lands described in the complaint. The decree, so far as the two last-mentioned tracts are concerned, is a final judgment, and it is from said judgment or so much of the decree as directs the dismissal of the action in so far as it relates to the lands described in subdivisions 1 and 2 of paragraph 3 of the complaint that this appeal is prosecuted. The appeal is upon the judgment-roll alone. All the facts, however, are set out in the court's findings.

The history of this case is substantially given and some of the salient facts hereof were presented to and considered by the supreme court in the recently decided case of In re Aldersley's Estate, 174 Cal. 366, [163 Pac. 206]. The appeal in that case arose over objection to an order settling the first and final account of Ellen Williams, the administratrix of the estate of James Aldersley, deceased, and involved, as the present appeal involves, the question of the scope and effect of certain deeds of trust. The facts which it is necessary to consider here are stated by the supreme court in the opinion in said case as follows:

"She [Ellen Williams] died pending probate and Elbert Aldersley succeeded her as administrator of the said estate, while her daughter, Julia A. McCloud, became her administratrix and legal representative. The case turns upon the validity of certain trust deeds, and the distribution to be made of the moneys received from the sale of the trust property.

"John Aldersley was the father of four children, all of whom were living at the time of his death. In 1882 he conveyed a certain parcel of land, known as tract No. 1, to three of his children-Ellen Williams, Edwin and William K. Aldersley-in trust for the benefit and use of his son James, who is the decedent in this estate. On June 10, 1889, John Aldersley made a second conveyance of another parcel of land designated herein as tract No. 2 to the said grantees, also in trust for the benefit and use of said James. On December 4, 1891, John Aldersley died intestate, leaving his four children as heirs, his wife having predeceased him. Thereafter, on February 13, 1892, James Aldersley, who in 1884 had received a patent from the United States government to a certain homestead, designated herein as tract No. 3, conveyed the land to the same grantees on like terms of trust as the other deeds. Thus the two brothers and the sister held the three parcels of land, which were as a matter of fact contiguous tracts, aggregating 440 acres, all in trust for the benefit and use of their brother James. The three convey

ances by which this result was accomplished were substantially identical in form, the provisions pertinent to the consideration of the questions raised by this appeal reading as follows:

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. . . That said party of the first part, in consideration .. does grant, bargain, convey and confirm unto said parties of the second part or the survivors of them, their heirs and assigns forever: All that certain tract of land situate, lying and being ... in the County of Butte, State of California,

""To have and to hold the above granted premises together with the appurtenances and every part thereof unto said parties of the second part, their survivors and assigns forever in fee, upon trust, nevertheless, and to and for the uses, interests, and purposes hereinafter limited, described and declared, that is to say:

"First: To receive the rents, issues and profits of said premises, and apply the same to and for the use, purpose, support and maintenance of said James Aldersley for and during the term of his natural life.

"Second: After the death of James Aldersley to convey the said premises by deed to said parties of the second part or their survivors or survivor, living at the death of said James Aldersley, their heirs and assigns.

""Third: In case the said parties of the second part deem it advisable, or if it becomes necessary to sell the said before described premises any time prior to the decease of said James Aldersley, said parties of the second part or the survivor, shall have full power and right to sell and convey said premises upon such terms and price as they may deem best and for the interest of their trust. . . .

"William K. Aldersley died on February 15, 1906, leaving four children, who are the contestants herein. Elbert Aldersley, already mentioned as the administrator of the estate of James Aldersley, is one of these children. Thereafter, in pursuance of the terms of the trusts, Ellen Williams and Edwin Aldersley took charge of the property. . . . On June 26, 1909, the three tracts of land were conveyed to Julia A. McCloud in consideration of one thousand four hundred dollars in cash and her promissory note secured by mortgage for $1,750. It was stated in the deeds from the trustees that the transfer was made because it was deemed 'advisable and necessary for all persons interested in said property to sell all of the said real property.' The conveyances were effected in one transaction by four separate grant, bargain, and sale deeds, each naming Julia A. McCloud as the grantee in fee, to wit: A deed of tracts Nos. 1 and 2 by Edwin Aldersley and Ellen Williams, trustees; a deed of tract No. 3 by Edwin Aldersley and Ellen Williams, trustees; a deed of tracts Nos. 1, 2, and 3 by Edwin Aldersley and Ellen Williams individually; and a deed of tracts Nos. 1, 2, and 3 by James Aldersley, individually. After Julia A. McCloud took possession of the property, the trustees and James ceased to live thereon. James died intestate on April 25, 1913."

In addition to the facts above narrated, the following further facts were found by the court in the present case, viz.: That the said William K. Aldersley, on the fifteenth day of October, 1903, by a deed of gift, conveyed to the plaintiff

herein all his right, title, and interest in and to all the lands granted in trust to the trustees by John Aldersley; that said deed to the plaintiff was, on the twenty-sixth day of August, 1914, duly recorded in the office of the county recorder of Butte county; that the plaintiff is one of the children of said William K. Aldersley.

It is conceded by the appellant that the deeds to Julia McCloud passed all the interest in the property owned by James Aldersley, Edwin Aldersley, and Ellen Williams, they having joined in the deeds and thus personally bound themselves. It is admitted that the plaintiff did not join in these deeds. It is contended that the trust deeds did not vest in the trustees the fee in the lands which are the subject thereof, but that they conveyed only such estate therein as was necessary for the purposes of the trust, and that, since the trust was to exist only during the life of James Aldersley, title to the property vested in the plaintiff and the defendant as successors in interest to John Aldersley's heirs. Or, to state the position of counsel for the appellant on this proposition in their own language, it is as follows: "The only estate that the trustees had was the legal title for the life of James Aldersley. The fee at all times remained in John Aldersley and after his death in his heirs, the plaintiff having a onefourth interest in the fee at the time of the deed to Julia A. McCloud. The utmost that can be said as to the effect of this conveyance (the deed to Julia McCloud) would be that the trustees thereby conveyed such interest as they had in the property, and, therefore, conveyed the title to the property during the equitable life estate of James Aldersley. But the trustees did not at the time or at any time have the fee or any title to the fee in the property, the remainder over, after the death of James Aldersley-had no title thereafter, and, therefore, had no interest in that title and could not convey the same.

It is further contended that the provision as to the sale of the property by the trustees is void as a trust to sell, "because a trust for purposes of sale" under subdivision 1 of section 857 of the Civil Code must be mandatory and not discretionary; but that (so the argument further proceeds), even if said provision was otherwise valid, it must fall, because it relates to and is therefore inseparably connected with the provisions of the second paragraph of the trust deeds (the trust