Estate of Fair

McFARLAND, J.

This is an appeal by Angus et al., named as executors and trustees in the will of .James G. Fair, deceased, and by certain other parties, from a decree of distribution distributing a large amount of the personal property of the estate to the three children of the deceased, Charles L. Fair, Theresa A. Oelriehs, and Virginia Fair Vanderbilt, who are his next of kin and only heirs at law, and from an order denying a motion for a new trial. The will of the deceased and all matters to be considered are fully set forth in the opinions of this court in the former case of the

Estate of Fair,

132 Cal. 532,

1

and they need not here be restated. It was. held in that case that the trusts attempted to be created by the will were invalid and void as to all the. real property of the estate; but it is contended by appellants in the case at bar that, notwithstanding such decision, the will and the trusts are still operative as to the personal property. This contention presents the only question in the case.

The position taken by appellants in the present appeal was clearly determined to be untenable by the decision in the former case. It was there contended by these appellants: 1. That the attempted ultimate disposition of the real prop

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erty by the will was not void on the ground that it was a forbidden trust to convey; and 2. That even if that were so, still there remained in the trustees a valid trust estate for life,—during the lives of the three children and the survivor of them. The court there held, as to the matter involved in the first contention, that the will was void. As to the second contention the court said: “We also agree with the learned judge of the court below that the invalid trust to convey carries with it the otherwise valid trust for the lives of the testator’s children, and that therefore the

whole trust failed.

Of course, the general rule is well settled, that where there are valid and invalid clauses in a will, the question whether the valid clauses can stand depends upon whether or not the invalid ones are so interwoven with them that they cannot be eliminated without interfering with and changing the main scheme of the testator.” Again it was said, quoting from an authority: “Where a will is good in part and bad in part, the part otherwise valid is void if it works such a distribution of the estate as, from the whole testament taken together, was evidently never the design of the testator. Otherwise, where a good part is so far independent that it would have stood had the testator been aware of the invalidity of all the rest.” And after further citation of authority illustrating the principle, it was said: “In the case at bar, it is quite clear from the will that the trust as to the income during the lives of the testator’s children and the trust to convey the