sists 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, well considered 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, 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 Am. & Eng. Eney. of Law (2nd ed.), p. 946: [9] "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. R. 353; Bearden v. White, 42 S. W. R. [Tenn.] 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.

We concur:

HART, J.
BURNETT, J.

CHIPMAN, P. J.

116 My * 4** * tele ties were wo par based was held Qefesinet Fort and 4 that the entrants were ele

114 frat conjuhý se much truth, and that thereafter the s compoty lid, and sti hoids, the r ́tje turrete, in trust for platf and the other defendants named], defendant Hart acquired all the equitable rights of all other persis That on December 15, 19, the except plaintiff, in the lots mentioned, the legal title thereto re mabuing in the Merchants Trust Company, and on the last mentioned date plaintiff and Hart entered into an agreement in writing, wherein it was recited that the plaintiff had demanded a rescission of the

lent means to so remburse plaintiff stter pa ta PIPINS ani ocmiss) 18. The MenERS TEN CAJ trepalies of the lots as sold, rective the pervase money, JIKA 2nd e Lit: ssics which are not to exoed en per cent, Då My Oter the sime to plant as attorey for her. This stru Puts the scatures of the parties therety, and written assent Le trist in jaly to act as 11 Istre 1' erender.

£is alleged that Hart interested the defend.ærts Wars Bravistole in the property em a manner wiknown to plaškem) r to the making of the agreement of March 24, 1987. That par to the mareenient of Deccæber 15 play tiď surrendered up ter seren original contracts to the Merchants Trust Compary and Hart and that they were cancelled. That nothing was ever done ' defendants under the last named agreement; that plaintiff has Dever bevu reimbursed or repaid the sums paid out on the orginal entracts, and that the sum of $ICCO is now due to her from the defendants Hart, Williams and Brownstone en account of the Istters and agreements above set forth, and that the title to the bts is still held in trust by the Merchants Trust Company for the deferdants naned and plaintiff to secure the payment of the ene thousand dollars.

The answer denies: That Merchants Trust Company holds title as trustee for, or to secure plaintiff, or for the beneût of plaintiff in any manner at all, or that it executed the seven contracts on behalf of the other defendants; demies that the original contracts of sale ever were cancelled; denies that plaintiff is entitled to be

Civil No. 712. Second Appellate District. November 19, 1909. SARAH A. SPRAGUE, Plaintiff and Respondent, v. GEORGE E. HART, THE MERCHANTS TRUST CO. (a Corporation), and SAMUEL H. WILLIAMS and JOSEPH BROWNSTONE, CoPartners, doing business under the firm name of Williams & Brownstone, Defendants and Appellants.

[1] ACTION ON CONTRACT-AGREEMENT TO SELL LOTS WITHIN SPECI FIED TIME-APPLICATION OF PROCEEDS LIABILITY FOR BREACH.Where certain persons at the instance of the owner of certain lots, agree to sell the same as soon as practicable and in any event before a designated date, and apply the proceeds in a specified way, they are liable to the person to whom such proceeds are payable for a breach of the agreement.

[2] ID.-ID.-ID.-ID.—PREVIOUS AGREEMENT PROVIDING FOR SELEC TION OF LOTS IN LIEU OF MONEY-LIABILITY UNAFFECTED.-The fact that such agreement refers to a former agreement between the owner and the person to whom such proceeds are payable, in which the latter is to select certain lots in lieu of money, does not affect such liability, the agreement to sell and pav the money superseding the selection.

[3] ID.-ID.-ID.-ID.-TRUST-REAL ESTATE HELD TO SECURE REPAYMENT ON PURCHASE PRICE-BREACH OF CONTRACT FOR SALE AND APPLICATION OF PROCEEDS TO REPAYMENT-ENFORCEMENT OF TRUST.— Where title to lots is held in trust to secure the repayment of money paid on account of their purchase price, equity may decree a foreclosure, where the money is not paid in accordance with a contract providing for a sale of the lots and application of the proceeds to such repayment.

Appeal from Superior Court of Los Angeles County-Walter Bordwell, Judge.

For Appellants-Johnstone Jones, R. P. Jennings.

For Respondent-John D. Pope, Wellborn, Wellborn & Campbell. This is an action to recover the sum of $1000 alleged to be due on a contract to reimburse and repay plaintiff payments made by her upon the purchase of certain real estate; and for a decree to sell the real estate and apply the proceeds of such sale to the payment of the amount due.

Plaintiff had judgment on the pleadings according to the prayer of the complaint and defendants' appeal.

It is alleged in the complaint that plaintiff agreed to purchase from the defendant Merchants Trust Company certain lots in Ocean Beach, San Luis Obispo county, and for that purpose on March 28, 1996, entered into seven contracts with that company and made certain payments thereon, amounting in the aggregate to $1000; that the title to the lots at the time they were so purchased was held by said trust company as trustee for the defendant Hart and other persons unknown to plaintiff, and that the contracts were executed by the trust company as such trustee, and that thereafter the trust company held, and still holds, the title thereto, in trust for plaintiff and the other defendants named. That on December 15, 1906, the defendant Hart acquired all the equitable rights of all other persons, except plaintiff, in the lots mentioned, the legal title thereto remaining in the Merchants Trust Company, and on the last mentioned date plaintiff and Hart entered into an agreement in writing, wherein it was recited that the plaintiff had demanded a rescission of the