to convey), which is invalid. (Estate of Fair, 132 Cal. 523, [84 Am. St. Rep. 70, 60 Pac. 442, 64 Pac. 1000]; Id., 136 Cal. 79, [86 Pac. 306].) It is further argued that the trust to sell is void because "the deeds did not contain any direction for the application or disposal of the proceeds, as required by the language of the code above quoted (Civ. Code, sec. 857), unless, indeed, the provision be found in paragraph 2, which is void."

The further point is urged that the power to sell is a mere collateral or naked power, not being coupled with an interest; hence, so it is argued, said power expired with the death of John Aldersley, and that therefore the conveyance by the trustees to Julia A. McCloud was wholly void, the further argument being advanced that, to perpetuate the life of the power beyond the decease of John Aldersley, the interest with which it must be coupled must be one arising by virtue of the trusteeship or created by the deeds of trust themselves; that the interest accruing to the trustees by reason of heirship, having no connection with the trust created by the deeds, cannot have the effect of reviving the power revoked by the death of the trustor.

Taking up first the points made against the validity of the power with which the trustees are invested by the deeds of trust to sell the property, it is conceived that a reply thereto is to be found in the opinion in the case of Estate of Aldersley, 174 Cal. 366, [163 Pac. 206]. Referring to that provision in the said deeds, the court in that case said:

"This presents the question whether the attempted sale of the three tracts to Julia A. McCloud passed any interest which James at the time possessed in the property, and, if so, the proportion of the consideration received therefrom which properly belongs to his estate. It is conceded that the trustees had no power of sale other than the power granted under the provisions of the third paragraph. But it is insisted that that provision is void principally because it is inseparable from the provision of the second paragraph. We find no merit in the contention. The deeds expressly provide that such a sale should be made whenever the trustees deem it advisable, or if it becomes necessary. To hold as contended that the third paragraph only authorizes a sale for the purposes of carrying out the provisions of the second paragraph, referring to the distribution of the principal, is to give the

language used a strained construction which is neither required by the context of the instruments, nor in harmony with the obvious intention of the trustors. But even if the provision be merely regarded as a power of sale, the validity of the sale cannot be questioned."

It is true that the court, following the use of the above language, declared that it was in that case concerned only with the interest of James Aldersley in the property and the effect of the sale upon said interest, and further said that the fact that James Aldersley gave his personal or individual deed to Julia A. McCloud, "purporting to convey the title to the three tracts of land to her," in itself "is sufficient to remove all doubt that the title which James possessed in the tracts has passed to the grantee." But this language may not be construed to mean (as counsel for the appellant seem to construe it) that the court intended to say that the sale by the trustees under the power to make the same provided in the deeds, while valid as to James, was not valid as against the other heirs of John Aldersley. Indeed, the language of the opinion immediately following that above quoted herein clearly shows that the court did not intend to state therein any such proposition or to convey any such impression. It will be noted that the language is: "But even if the provision be merely regarded as a power of sale, the validity of the sale cannot be questioned. Moreover [italics ours], as has been stated, James, for a valuable consideration, personally gave his deed to Julia A. McCloud," etc. The word "moreover' means "beyond this" or "besides this," so that the meaning of the opinion, to paraphrase the language, is: That the sale by the trustees was not only valid and conveyed full title to Julia A. McCloud, but that all possible doubt of James' interest in the three tracts having been conveyed to her is wholly removed by the personal deed of James himself, for a valuable consideration, conveying to her whatever interest he possessed in the property described in the trust deeds.

While, as in effect above stated, we think it is clear that the conclusion of the supreme court that the sale by the trustees was valid answers all the points made here by the appellant against the validity of the trust to sell and the sale (for it is inconceivable that the sale should be valid and the trust to sell be invalid), there is, nevertheless, one of the points so made to which we may properly give brief special attention.

seen, the appellant contends that the provision in the deeds authorizing the trustees, under the circumstances specified, to sell the property is invalid "because the deeds did not contain any direction for the application or disposal of the proceeds, as required" by section 857 of the Civil Code, as that section read at the time the deeds here were made and before the amendment thereof, so that trusts for the purpose of conveying property may legally be created. The language of said section, as it originally read, and which is pertinent to this point is: "Express trusts may be created for any of the following purposes: 1. To sell real property, and apply or dispose of the proceeds in accordance with the instrument creating the trust."

The clause in the deeds empowering the trustees to sell the property provides, as we have seen, that such sale may be made, if the trustees deem it advisable, upon such terms and at such price as they "may deem best for the interest of their trust." The rational and, indeed, it seems to us, the natural interpretation of that language, viewed in the light of the explicitly explained purpose of the trust, gives to it but one meaning, which is this: That, if found by the trustees to be for the best interest of the beneficiary for whose benefit the trust was created to sell the property and thus convert the subject matter of the trust into money, they were to adopt that course and so administer the trust in the changed form as that the beneficiary should receive, not the principal, but whatever income that might be derived therefrom. Thus the provision refers, not to the second paragraph of the deeds, as counsel maintain, but to the first paragraph which establishes and vests in the beneficiary whatever beneficial or equitable interest he acquired in the lands by virtue of the deeds of trust; and thus the beneficiary would receive, as fully as though the corpus of the trust property remained in the form of land, the issues or profits (the interest) accruing from the investment or the loaning of the money. Thus, it seems to us, a direction for the application of the proceeds of the sale according to the terms of the instrument creating the trust is clearly and, indeed, unquestionably implied. There can be no doubt that a court of equity, testing the meaning of the provision according to the principles which govern that court, would so decree, if the trustees failed or refused to apply whatever the money earned to the "use, support, and mainte

nance of James Aldersley." Of course, like the land, had the subject of the trust so remained, the principal sum of money, upon the death of James, would have gone to the estate of the trustor, he having died before the death of James, and the trust to convey being void.

To the point first above stated, namely, that the trustees, holding at no time the fee in the property or the remainder over upon the death of James Aldersley, could not therefore convey the fee, the answer is that, while it is true that they were not vested with the remainder in fee after the termination of the equitable estate of James, there was nevertheless necessarily vested in them, as trustees, such an estate in the lands conveyed as was essential to the accomplishment of the valid purposes of the trust. Hence, the right to sell necessarily carried with it the authority to convey the fee. (Morffew v. San Francisco & S. R. Co., 107 Cal. 587, 595, [40 Pac. 810]; Estate of Aldersley, 174 Cal. 366, [163 Pac. 206].) In the first mentioned case it is said: "The quantity of interest which passes to the trustee in case of an express trust is commensurate with the necessities of his office; the trustee shall have an estate in fee, if that is necessary to enable him to perform the duties imposed upon him, although it is not in terms given to him by the instrument creating the trust; on this principle a devisee of lands in trust to sell clothes the trustee with the fee, because necessary to the execution of the trust, the rule being compendiously stated that the trustees 'will take an estate adequate to the execution of the trust-no more nor less.'" (Perry on Trusts, 5th ed., sec. 320; Young v. Bradley, 101 U. S. 787, 25 L. Ed. 1044].) Quite plainly, if this proposition were not sound and unimpeachable, the provision for the sale of the property would be meaningless and wholly nugatory, and the full and proper execution of the ultimate purpose of the trust, according to the best interests of the cestui que trust, might be entirely frustrated. What could the trustees sell, if not a full and complete title to the entire estate in the land? But the soundness of the proposition above stated is too obvious to require further notice of it.

It will not, of course, be contended that, if the provision authorizing the sale of the land is valid, as we hold, upon the authority of In re Aldersley's Estate, 174 Cal. 366, [163 Pac. 206], that it is, the right to sell and convey the fee was affected

either by the death of William K. Aldersley (one of the trustees) or by the fact that said William K. attempted to convey to the plaintiff, prior to the conveyance of the land by the trustees to Julia A. McCloud, whatever interest he (Wm. K.) might have had as an heir in the estate of John Aldersley.

The deeds to the trustees not only conveyed to them, for the purposes of the trust, the property and vested in them the powers essential to the execution of the trust, but also conveyed the lands to and vested such powers in the remaining trustee or trustees, upon the death of one or more of them. Not only is this true, but paragraph 3 of the deeds, providing for the sale of the property, itself contains a like provision— that is to say, it provides that the power of sale shall be in the trustees named or their survivor. Thus it is clear that the right to sell continued to exist in the surviving trustees, after the death of William K. Aldersley. And, obviously, his deed to the plaintiff could not have the effect of destroying that right. Of course, the plaintiff, as the successor of his father, William K. Aldersley, is entitled to whatever interest he would legally be entitled to from his father's one-fourth interest in the estate of John Aldersley; but the lands having been sold by the trustees, by virtue of the right thus given them by the trust deeds, prior to the death of James, the deed from William K. to the plaintiff was without force and effect. The judgment is affirmed.

Chipman, P. J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on December 14, 1917.