of the grantor, and that the beneficiary, James M. Nichols, was dead. William Nichols made default, and the action was dismissed as to James, who was found to be dead. The court found the execution and delivery to plaintiff of the deed of trust by Walter E. Nichols, and "that said Walter E. Nichols at no time made any other or further disposition of the land mentioned and described in the instrument."

It then found: "That it was not the intention of the said Walter E. Nichols when he executed the said instrument and delivered the same, nor of said Walter R. Nichols when he received the same, that said instrument should pass any immediate interest in said lands to said Walter R. Nichols, but it was intended that said Walter E. Nichols, the grantor in said deed, might use, possess, and occupy said lands and the products thereof during his life, and might make during his life any disposition of said lands that he might choose other and different from that determined upon in the said instrument, and said Walter E. Nichols did from the date of said instrument up to his death use and occupy said lands and take to himself the entire product thereof.

"That no consideration ever passed to said Walter E. Nichols, grantor therein, for said instrument.”

Due exception is taken to these findings.

The court concluded as matter of law that the instrument (the trust deed) is testamentary in character, and is to be judged by the laws of wills, and, so judged, that it is void for want of execution with the formalities prescribed for wills.

No express finding was made upon the issue of revocation of the trust, the court apparently deeming it unnecessary under its construction of the instrument. The only declaration touching the matter is the one above quoted, that the grantor never made other disposition of the lands.

A formal written acceptance of the trust over the signature of the trustee is embraced in the instrument, which was duly acknowledged by both grantor and

grantee, and recorded at request of the latter. It was pleaded and proved at the trial that the beneficiaries, as beneficiaries under the trust, had executed and acknowledged to plaintiff, as trustee under the trust, an authorization to sell the property. No question of the invalidity of the trust is raised by the pleadings, the only claim in hostility to it being that presented by the averments of its nonacceptance and revocation. It is true that defendant, Adeline Emery, by cross-complaint, pleads ownership in fee of the undivided fourth part of the land, but nowhere in the pleadings or in the arguments of her counsel upon the trial, as disclosed by the record, is it even suggested that the trust instrument is void because testamentary in character.

The surprise which plaintiff urged as a ground for a new trial seems, under the circumstances, to have been quite natural. The court reached its conclusion from its interpretation of the instrument by the light of the evidence in the case. That evidence is brief, consisting only of the testimony of the trustee, and it may be well to quote it. He says upon cross-examination:

"The deed of trust was executed at its date. I did not go into the actual possession of the property until after the death of W. E. Nichols, who occupied the premises from the date of the deed to the date of his death. He farmed the place and took all of its revenues. I took all of its revenues. I think he offered the property for sale; advertised it in a newspaper for sale. He paid the taxes on the land. They were assessed to him. I knew that the deed of trust gave to my father the right to revoke the trust. In speaking of this land W. E. Nichols spoke of it as his own land. He had cultivated the crop that was on the place at the time of his death. A part of the crop was his. He leased part of the land."

At this point objection was made to "this testimony and this line of testimony." And the attorney for Mrs. Emery stating that he sought to show that the grantor had remained in possession of the land and had not

recognized the trust, and that he would claim that the grantor had "acquired a right to the land by adverse possession," and that therefore he had filed his crosscomplaint, the court after discussion sustained the objection.

Returning to the evidence, it is to be noted at a glance that its statements are in some respects contradictory and ambiguous. "He farmed the place and took all the revenues. I took all the revenues." "A part of the crop was his. He leased part of the land." Whether as lessor or lessee is not made plain. However, these matters need not further be considered since, as has been said, there is no finding upon the question of the revocation of the trust, and since a settler, in the absence of fraud, mistake, or some similar ground of relief, cannot by failing to "recognize" the trust, or even by repudiation of it, affect the rights of the trustee and beneficiary vested under his deed.

The evidence must by the court have been considered as bearing upon the intent of the grantor in making the deed, and we proceed to review its decision in this regard. It is undoubtedly the general rule enunciated by the leading case of Habergham v. Vincent, 2 Ves. Jr. 231, and oft repeated, that the true test of the character of an instrument is not the testator's realization that it is a will, but his intention to create a revocable disposition of his property to accrue and take effect only upon his death and passing no present interest.

The essential characteristic of an instrument testamentary in its nature is, that it operates only upon and by reason of the death of the maker. Up to that time it is ambulatory. By its execution the maker has parted with no rights and divested himself of no modicum of his estate, and per contra no rights have accrued to and no estate has vested in any other person. The death of the maker establishes for the first time the character of the instrument. It at once ceases to be ambulatory, it acquires a fixed status and operates as a conveyance of

title. Its admission to probate is merely a judicial declaration of that status.

Upon the other hand, to the creation of a valid express trust it is essential that some estate or interest should be conveyed to the trustee, and, when the instrument creating the trust is other than a will, that estate or interest must pass immediately. (Perry on Trusts, sec. 92.) By such a trust, therefore, something of the settler's estate has passed from him and into the trustee for the benefit of the cestui, and this transfer of interest is a present one and in nowise dependent upon the settler's death. But it is important to note the distinction between the interest transferred and the enjoyment of that interest. The enjoyment of the cestui may be made to commence in the future and to depend for its commencement upon the termination of an existing life or lives or of an intermediate estate. (Civ. Code, sec. 707.)

Did the grantor in the present case divest himself by the instrument of any part of the estate in the land which he had formerly owned and enjoyed? By the terms of the instrument an estate was assuredly conveyed to the trustee. The language is appropriate to a conveyance, and the grantor's execution and delivery of the deed (both found), he being under no disability, and impelled by no fraud, operated to vest so much of his estate in the trustee as was necessary to carry out the purpose of the trust. The especial purpose was to sell and distribute the proceeds upon his death—a legal purpose authorized by section 857 of the Civil Code. The term of the duration of the trust, the life of the settler, did not violate the provisions of section 715 of the same code. We have, therefore, an estate conveyed to a named trustee for named beneficiaries, for a legal purpose and a legal term, such a trust as conforms in all its essentials to the statutory requirements. That no disposition is made by the trust of the interest and estate intervening in time and enjoyment between the dates of the deed and the death of the settler cannot affect the trust. The trustee takes the whole estate

All else re

necessary for the purposes of the trust. mains in the grantor. (Civ Code, sec. 866.) In this case there remained in the grantor the equivalent of a life estate during his own life, and he was thus entitled to remain in possession of the land, or lease it and retain the profits.

Nor did the fact that the settler reserved the power to revoke the trust operate to destroy it or change its character. He had the right to make the reservation (Civ. Code, sec. 2280), but the trust remained operative and absolute until the right was exercised in proper mode. (Stone v. Hackett, 12 Gray, 232; Van Cott v. Prentice, 104 N. Y. 45.) Indeed, this power of revocation was strongly favored in the case of voluntary settlements at common law, and such a trust without such a reservation was open to suspicion of undue advantage taken of the settler. (Lewin on Trusts, *75, 76; Perry on Trusts, sec. 104.)

We think, however, that the circumstances of the reservation of power to revoke, and the limitation of the trust upon the life of the settler, have operated to mislead the learned judge of the trial court. If the life selected had been that of a third person, and if no revocatory power had been reserved, no one would question but that a valid express trust had been created. But the fact that the designated life in being was the settler's could not operate to destroy its validity, for he had the right to select the life of any person as the measure of duration. And the fact that he reserved the right to revoke did not impair the trust, nor affect its character, since title and interest vested subject to divestiture only by revocation, and if no revocation was made, they became absolute.

A man may desire to make disposition of his property in his lifetime to avoid administration of his estate after death. Indeed, in view of the fact, both patent and painful, that the fiercest and most expensive litigation, engendering the bitterest feelings, springs up over wills, such a desire is not unnatural. And when it is