At the outset of this inquiry, it becomes important to recall the circumstances under which the testator executed his will. As disclosed by the instrument itself, he was not in the complete ownership of any item of the property, real or personal, which was to and did pass into the possession and control of his executors. It was all community property, in which his interest was only an undivided half, and he undertook to dispose of this half, and no more. A physical partition of each parcel of land would not, therefore, have been feasible, and cannot be supposed to have been in the contemplation of the testator. Yet such subdivision, if any, would seem to be necessary if we are to give full and literal significance to the word "equal." The estate is to be divided into three "equal" parts. The parts will not be equal unless they are equal in all respects-in quantity, in character, and in value. (See Richardson v. Morey, 18 Pick. (Mass.) 181, 188.) The respondents, however, limit the requirement to that of equality in value, and contend that the trustees are to appraise the entire estate, and divide the whole into three separate portions which may be composed of entirely different constituents, subject only to the condition that the value of each part, according to their appraisement, shall be substantially the same. But this, if a permissible interpretation of the language, is by no means a necessary one. And, since the result of adopting it would be to destroy the testamentary effort, we must pass it by if we can find a different meaning, which, while fair and reasonable, will allow validity to the will. In the first place, the word "divide," in and of itself, does not import an actual physical segregation into distinct shares. It is, when used in such phrases as "to be divided between," or "divided in equal shares among" or the like, very commonly used to express an intention to give interests to persons as tenants in common. It will suffice to cite a few of the many authorities that might be referred to in support of this statement. (Walker v. Dewing, 8 Pick. (Mass.) 520; Emerson v. Cutler, 14 Pick. (Mass.) 108; Griswold v. Johnson, 5 Conn. 363; Weir v. Tate, 39 N. C. 264; Freem. Cot. & P., 2d ed., sec. 23 and cases cited.) It is likewise well settled that such phrases as "equal parts” or "equal third parts" or "third parts" are entirely appropriate to indicate a tenancy in common. (Arthur v. Nelson, 1 Dem. (N. Y.) 337; Andrew's v. Boyd, 5 Me. 199.)

There is, to be sure, a difference between a mere provision that property is "to be divided" between certain persons (as in the cases heretofore cited), and a direction that trustees shall so divide it. The respondents cite cases which, as they claim, support their contention that the words used in the Spreckels will impose upon the trustees the active duty of separating the entire estate into three distinct portions of equal appraised value, and to allot one of these shares to Claus A., one to Rudolph, and the other to themselves as trustees for Emma and those who are to take upon her death. But we think these authorities, when examined, will be found to deal, in each instance, with a form of expression substantially different from that employed in the Spreckels will. In Hawley v. James, 16 Wend. (N. Y.) 61, the will directed the trustees, at a certain time, "to proceed to divide" the residue, "as nearly as may be, into twelve equal parts," and to "allot and distribute the same." These were, besides the words "as nearly as may be" and the direction to "allot and distribute," various other expressions showing that an actual segregation of shares was contemplated. DeKay v. Irving, 5 Denio, (N. Y.) 646, specifically directed that all the property "shall be valued in one united valuation, to be made by appraisers . . . and the aggregate amount of such valuation shall be divided into five equal parts, and so much of the said aggregate estate as shall be equal in value to one of said five parts shall go to each of my children . . . etc." It was further directed that specific property should be included in certain portions. Certainly there could be no doubt of what the testator meant by these elaborate provisions. Cooke v. Platt, 98 N. Y. 36, is somewhat closer to the case at bar, but even there the language pointed more clearly to a physical partition than that here found. The will gave property to trustees, in trust "to divide and distribute my estate, or its proceeds, . . . to and among my four children (naming them) in equal proportions." Lord v. Comstock, 240 Ill. 492, [88 N. E. 1012], is strongly relied on by respondents in support of their position that the entire fee was intended to be vested in the trustees, and was necessary to enable them to make the division. But there the will plainly declared an intent that an actual segregation of the estate into separate parts should be made, for it provided that upon the death

of one of the life tenants, her share of the income should go to her heirs "until one half of the principal of my estate, as it shall then be, can be made over to them, the said trustees taking such time as they shall think best for the interest of all concerned in making division of said principal." The will considered in Story v. Palmer, 46 N. J. Eq., 1, [18 Atl. 363], in addition to provisions like those in the will before us, expressly gave power to the executors to "make all divisions and partitions of my real and personal estate, or the proceeds thereof." Fischer v. Butz, 224 Ill. 379, [115 Am. St. Rep. 160, 79 N. E. 659], involved a will which empowered the executors to "sell, convey, mortgage or partition any part or all of my estate for the purpose of settlement thereof," a form of words, which, in connection with the rest of the will, exIcluded the idea that tenancies in common were intended. Guilbert v. Guilbert, 68 Misc. Rep. 405, [124 N. Y. Supp. 564], was a case in which the devise was upon trust to set apart one half of the residuary estate, "as nearly as the same, in the judgment of my executors, can be set apart or apportioned." This clearly gave a discretionary power to segregate specific property as one half of the residue. In Potter v. Eames, 70 Misc. Rep. 147, [126 N. Y. Supp. 787], we again find the phrase "as nearly as may be" in connection with a direction to trustees to "divide into two equal separate parts or portions" and the court lays stress upon these words in announcing its conclusion. Manice v. Manice, 43 N. Y. 303, is a case strongly relied on by both parties, more particularly with reference to the question of devise by implication. For our present purpose, it will suffice to say that the testator provided an elaborate scheme for appraisal, and a division into twelve equal parts, of "the aggregate amount of such personal and real estate." One other case cited by respondents may be noted. It is Boston S. D. & T. Co. v. Mixter, 146 Mass. 100, [15 N. E. 141]. The testator, by his codicil, gave one fourth of his estate to a trust company, the income to be paid to his daughter, and "at her death I direct that said estate so left in trust shall be divided among her children, share and share alike, giving to each child. . . one share." It was held that because a division was to be made, the entire estate was in the trustee. It will be observed that the will does not provide that the trustee is to make the division, and it would seem,

accordingly that, under the great weight of authority including one case in our own state, the direction that the property should be divided might well have been held to be a direct grant of tenancies in common. (Estate of Heywood, 148 Cal. 191, [82 Pac. 758]; Potter v. Eames, 70 Misc. Rep. 147, [126 N. Y. Supp. 787].)

None of these cases, then, is authority for the proposition that a mere direction to divide an estate into three equal parts imports a physical partition of the property, or a valuation and apportionment into heterogenous shares of equal appraised value.

It may be remarked that many New York cases use expressions concerning "division" or "severance" of trust funds or estates in a sense that might be misunderstood if due regard were not had to the New York statute limiting restraints on alienation. The statute of that state prohibits the creation of a future estate which may suspend the absolute power of alienation for a longer period than during the continuance of not more than two lives in being at the creation of the estate. Where, therefore, an estate is devised for the benefit of several persons during their lives, it is often essential to the validity of the disposition that the interest of each be severed from the rest, so that, through considering such interest by itself, the suspension of the power of alienation shall not exceed the duration of two lives. But it is not necessary to this end that there should be any physical division. "All that is requisite is that the intent to have the estate contemplated as theoretically divided into separate parcels or portions should appear." (Chaplin, Susp. of Power of Alien'n, sec. 217.) Instances of such supposed separation are found in many cases in which there was no direction to divide, but merely a provision for enjoyment "in equal shares," or other words indicating tenancies in common. (Tucker v. Bishop, 16. N. Y. 402; Savage v. Burnham, 17 N. Y. 561; Everett v. Everett, 29 N. Y. 39; Hoppock v. Tucker, 59 N. Y. 202; Matter of Verplanck, 91 N. Y. 439.) The court of appeals had no difficulty in reaching the same result where the will expressly provided for a setting apart of an "undivided one-fourth part" of the residue. (Vanderpool v. Loew, 112 N. Y. 167. [19 N. E. 481].) On the other hand, where a will devised an estate to trustees, in trust "to divide my estate into three equal shares, one to be held in trust

for each of my children during life, and after death to be disposed of as follows. . . etc.," the court treats the language as similar in effect to that used in such cases as Tucker v. Bishop, 16 N. Y. 402; Savage v. Burnham, 17 N. Y. 561, and Hoppock v. Tucker, 59 N. Y. 202, citing these cases in support of the statement that "the authorities abundantly sustain devises and bequests in this form." (Moore v. Hegeman, 72 N. Y. 376.) In the case last cited, the form of words was substantially the same as the part of the Spreckels will now under consideration. If such words called for a physical segregation of the estate, whether by partition, or by appraisement and allotment of shares of equal value, the severability of the trusts would have been apparent, and the validity of the disposition could have been sustained on even clearer ground than that applied to cases where the will directed a mere theoretical segregation into undivided interests. Yet it did not, apparently, occur to the court that a simple direction to "divide into three equal shares" meant anything different from a direction to hold for beneficiaries "in equal shares."

Of the many cases cited by learned counsel in their exhaustive briefs, we may briefly notice one or two in addition to those already discussed. Thompson v. Hart, 58 App. Div. 439, [69 N. Y. Supp. 223], is strongly relied on by respondents. But the decision, when examined as a whole, seems to bear more strongly against their position than in its favor. There the devise was to trustees "1st in trust to divide the same into five equal parts or shares, and to allot to my children . . . each one of said five parts or shares; 2nd. As to each of such parts or shares, to continue seised of the same for and during the life of the child to whom such part or share is allotted, upon the trust... to apply the net income, etc.

If such child leave no lawful issue then surviving, then to divide, distribute and pay over the said capital and accumulations in equal portions to and among the children then living of any surviving brothers or sisters." The provision (1st) to divide and allot was given a construction similar to that for which the respondents contend here. But of the later provision (2nd) for the disposition of the property upon the death of a child ("to divide, distribute and pay over in equal shares") a provision not unlike the direction to divide in the Spreckels will, the court says that it must be treated as a