3. But if we are wrong in holding the remainder to be contingent, we find insuperable objections to the scheme worked out by appellant. The object of the transfer doubtless was to discharge the trust, the benefits of which the mother was willing to forego, that she might, at least during their minority, manage and control the property for her children, freed from any restraints by the trustees. Is this allowable by the simple expedient of a transfer of the life estate and in the absence of any pretense of mismanagement or fraud of the trustees? Aside from the question, raised in the briefs, that this may not be done, except by bill in equity (a question we do not find it necessary to decide), it seems to us that to carry out appellant's plan we must fly in the face of the testator's express directions, and this would be violative of the first duty of the court-namely, to effectuate his intention. The will bears the earmarks of skilled professional workmanship. That it was drawn with a view to have its provisions faithfully and, at least, substantially, followed cannot be doubted. The testator selected near of kin as his trustees and devised the property to them in trust, with power to manage and control the property and pay over the incomes to his widow and daughter for their support and maintenance and to the successor of either of them. He expressly provided that the trust should continue during the life of the survivor, whichever one it might be, and he expressly declared that the property was to vest in the children of his daughter then living or who might thereafter be born to her, at the death of the survivor, who might happen to be his widow, and not sooner. The character of the property suggests a necessity for wise and prudent management, for it consists of shares in a stage company and in a hotel property. If the testator had thought it unnecessary to place the management in the hands of his chosen trustees and for the period named by him, an entirely different method would have been adopted. But his desire was not only to provide support for his widow and daughter and the survivor of either, but to preserve the corpus of the estate for his daughter's children, and the duties of the trustees were to cease "upon the death of such survivor," the property and the accumulation to then vest in the children. It must not be overlooked that the will devises the property to the trustees, and it is only the incomes which are to be

paid to the widow and daughter. The remaindermen come into their own at the termination of the trust, the period of which is definitely fixed. The trustees were given power to lease or sell any of the property at public or private sale with or without notice and without the previous order of any court, and the testator's confidence in his trustees was such that he directed that no bond or other security be required of them, or either of them, at any time for the faithful performance of their duties. All these important powers and duties are to be no longer imposed upon anyone, and the control and management of the property is to pass to these two minor children with absolutely no provision for the protection of unborn children, except upon the principle that should any appear hereafter, the estate will open and let them in. The property involved is all personal property— shares in corporations and may pass by indorsement. The decree prayed for places no restrictions upon these children in the disposition of the property, and it would be extremely difficult to so frame a decree as would protect unborn heirs, as might readily be done if the property were real estate. These children could vote the stock only through their guardian (Civ. Code, sec. 313); and, if an action in court should become necessary, it must be conducted by a guardian. (Civ. Code, sec. 42.)

Counsel for appellant was asked by my associate, Judge Hart, at the argument, how he would frame a decree that would place the entire trust fund in the hands of two minors and their guardian, and at the same time adequately protect the unborn children, and no satisfactory answer was forthcoming. The difficulties of accomplishing such a task are many. For myself I can see no way, if the estate is to be distributed to these children, except to establish by the decree some sort of a substituted trust for that created by the testator, and how can these minors act as trustees during minority? But why struggle to set aside the careful, wellconsidered and entirely sufficient means of effecting the testator's object which he provided?

It is altogether too narrow a view of the trust to say that the testator's widow and her daughter were the only beneficiaries of the will, or that they were the principal or only objects of testator's bounty. They were to receive only the

incomes, rents and profits; the corpus of the estate was to be husbanded, managed and controlled for the benefit of two children then living and others who might come after-the latter a probable event, for Mrs. Higgins' husband is living. The control and management of the estate was a large consideration with the testator, and, that the property might be protected and safely transmitted to the remaindermen was doubtless also of much concern to the testator in selecting his trustees. It is inconceivable that he ever thought it possible or ever intended that the scheme he had so carefully devised for the benefit of all concerned should be disregarded and one wholly inadequate to accomplish his object substituted. What say the courts upon this question?

In Walker v. Sharpe, 68 N. C. 363, a life estate was given the widow, remainder to her children at her death. The children were all of age and the widow joined with them for a dissolution of the trust. There was no possibility of other issue and the trustees did not object. It was held that the children's interest vested at the death of their mother, and her surrender of the life estate was without a valuable consideration and was not entitled to the approval of the equity court. In Brady v. Walters, 55 Ga. 25, the land was conveyed to B, the wife of C, for her sole and separate use, and the use of her children born and to be born. Held, that a trust estate was created in B and for the use of her children, and that the trust was not executed until all probability of the birth of any more children had become extinct. In Brandenberg v. Thorndike, 139 Mass. 102, [28 N. E. 575], a life estate was given to the widow, remainder to be paid three years after her death to certain named nieces and nephews then surviving. The widow waived her life estate and took her dower instead. The court said: "We must construe the bequest in favor of the nieces and nephews in the same manner as if the widow had accepted the provisions of the will. Recurring to his bequest, it is clear that it cannot now be determined who will take under it. It is a bequest to the nieces and nephews 'then surviving' and to the issue of each niece or nephew 'the deceased leaving issue them surviving.' It cannot be known that any of the nieces and nephews now living will take anything under this bequest. This furnishes a conclusive reason why the trust cannot now

be terminated." The doctrine is stated in 28 American and English Encyclopedia of Law, second edition, page 946: "Where a trust is in favor of the children now living or that may hereafter be born of certain parents, the trustees will retain the title as long as there is a possibility of issue, which in the eye of the law continues as long as the woman lives, or coverture exists. (Godfrey v. Roberts, 65 N. J. L. 323, [55 Atl. 353]; Bearden v. White (Tenn.), 42 S. W. 476.) Cases where all the interested parties or parties who may be interested in the future are in esse and acting or capable of acting suo jure, are not in point here and do not apply to a trust where the persons who are to take can only be determined at the termination of the life estate or death of the life tenant.

We think the trial court reached a correct conclusion, and the judgment is therefore affirmed.

Hart, 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 January 10, 1910.

[Civ. No. 692. Second Appellate District.-November 13, 1909.] R. A. VAN LOAN and R. L. BERRY, Appellants, v. J. M. GLAZE, Respondent.

ACTION FOR BROKERS' COMMISSIONS-SALE OF ORCHARD-PROPOSED PURCHASER UNWILLING TO ACCEPT TERMS-FINDINGS-ACREAGE NOT WARRANTED. Real estate agents are not entitled to recover commissions for procuring a purchaser for defendant's orchard described, according to belief, as containing 28 acres, for a price of $30,000, on specified terms, where the court found, upon sufficient evidence, that the estimated acreage was mere matter of description and that it was intended to sell the orchard as a whole, upon the terms specified, without any warranty of quantity, or of acreage; and that the purchaser, upon receiving an abstract

showing only 26.72 acres in the orchard, refused to purchase upon the terms proposed, and requested a modification of terms, to which the vendor did not agree.

ID. SALE NOT EFFECTED.-Where the broker assumed to sell 28 acres for $30,000, the purchaser properly refused to accept 26.72 acres as a compliance with the broker's contract, which he had the right to do; and it is equally true that if defendant offered his orchard as an entirety, regardless of the acreage, for that sum, then his mind and that of the purchaser never met, and defendant cannot be compelled to carry out a contract which he never made.

ID.-MUTUALITY OF MISTAKE-OMISSION IN FINDINGS IMMATERIAL.In view of the findings as to the sale of the orchard as an entirety, and not by quantity or guaranty as to area, and that the sale failed because of shortage in the acreage alone, it is entirely immaterial whether the mistake in the acreage was mutual or not, and the omission to find upon an issue as to such mutuality was not a mistrial, or ground for a new trial.

APPEAL from a judgment of the Superior Court of Tulare County, and from an order denying a new trial. W. B. Wallace, Judge.

The facts are stated in the opinion of the court.

Larkins & Feemster, for Appellants.

Power & McFadzean, for Respondent.

TAGGART, J.-Action to recover commissions for sale of real estate. Judgment for defendant, and plaintiffs appeal from judgment and order denying their motion for a new trial.

Defendant, who resided at San Jose, was the owner of an orange orchard in Tulare county. Plaintiffs, who were real estate agents doing business at Visalia in that county, having in mind a prospective purchaser for the orchard, procured from defendant the following writing:

"May 28th, 1907.

"I agree to sell to R. A. Van Loan and R. L. Berry, or any one whom they may name at any time, and up to and including June 2nd, 1907, the following real estate: 28 acres in the northwest quarter of the northwest quarter of the southeast quarter of section twelve, township twenty south, range twenty-six east, M. D. B. & M., for the sum of $30,000.00,