(Civ. Code, sec. 863.) dispose of her whole

tees, and they hold the legal title. The intention of the testatrix to estate by her will is therefore clear; and, as it will not be presumed that she intended to devise any of it in trust without declaring any effectual trusts, such an interpretation must, if possible, be placed upon the remaining provisions as will include every estate in this property within the trusts created.

The first trust as to this property is contained in the direction of the trustees to deliver the possession of this property to Williametta H. Cook, and to permit her to occupy and use it until her death, free of rent. This provision does not create a "life estate" in the occupant, as has been assumed by counsel. The entire estate, as said above, remains in the trustees, and the beneficiary has a mere personal right of occupancy without rent. The condition of the property, and the estate of the trustees therein, during the life of the occupant, is precisely the same as would be the case as to any other piece of property which the trustees might be, from any cause, unable to rent. They would not be deriving income therefrom, but they would nevertheless "hold" it, and it therefore falls wthin the word "residue," as used in the fourth subdivision. The fact that they could not rent it during the life of the occupant does not conflict with the requirement that they are to "keep" the property embraced in that residue "invested." That direction must be construed in connection with the first subdivision, and with the teachings of ordinary experience, and merely means that they are to keep the property invested and derive income therefrom so far as they are able. While it was possible that Williametta H. Cook might live more than ten years, it was equally possible that she might live for a less period; and in that event it would unquestionably be the duty of the trustees to rent the property and apply the income as directed in the fourth subdivision. We are therefore clearly of the opinion that the word "residue," as used in that subdivision, includes the property in question.

For like reasons it is manifest that it is included in the meaning of that word as used in the fifth subdivison. Presumptively, of course, it is so intended, and we see no reason for restricting the meaning of the word as there used. As the whole estate in this property is vested in the trustees, it will be "remaining in their hands" at the expiration of the ten years, whether Williametta H Cook be then living or not. Nor is there any legal difficulty in their selling it and converting it into money. Even if Williametta H. Cook could be considered as having a life estate within the full meaning of that expression, and the trustees as holding merely a reversion, that reversion is legally the subject of sale. In this state future interests in property, whether real or personal, may be transferred to the same extent and in the same manner as present interests. (Civ. Code, secs. 678, 680, 688, 690, 699, and see, also, the notes of the code commissioners to those sections.) It would, therefore, be entirely practicable, in a legal sense, for the trustees to sell and convey this reversion, both as to the homestead and as to the personal property, and thus convert it into money. What they would do, indeed, would merely be to sell the property itself, subject to the right of Williametta H. Cook to use and occupy during her lifetime. The value of her interest, and therefore the value of the remaining interest, is ascertainable by wellknown legal rules (McCampbell v. McCampbell, 5 Litt. (Ky.), 92; 15 Am. Dec. 48); and no difficulty need then arise in making such a sale. Counsel for respondents are mistaken in supposing that such a sale would be invalid, even as to the personal property, for want of immediate delivery. Delivery is requisite only when a present interest is transferred, while the transfer of a future interest only entitles the transferee to the possession at a future period. (Civ. Code, secs. 689, 690.)

The argument of respondents under this head, moreover, proves too much. They direct their attention solely to the contingency that Williametta H. Cook may be still living at the expiration of the ten years. But,

at the time the will was made, the other alternative was at least equally probable, and was presumably equally within the contemplation of the testatrix. By the fourth subdivision the trustees were directed to keep the property invested, which, as to real property, means rented. As the trustees were bound to rent on the most favorable terms obtainable, and as they could not know when Williametta H. Cook would die, they might well make leases which, though not extending beyond the ten years, would extend beyond her life. If she should die before the expiration of ten years, with those leases still outstanding, the trustees would be bound, under the fifth subdivision, to sell the property so leased at once. But in so doing they would be confronted with precisely the same difficulty as that which respondents now argue, for they would hold only a reversion in such property.

There is, therefore, no reason for supposing that the testatrix, in the fifth subdivision, intended her language to be restricted or deprived of any of its full, legal, and ordinary meaning. As we said at the outset, it is immaterial whether or not she had the various contingencies that might occur clearly before her mind. had, the one contingency was as likely to occur as the other, and each presented the same difficulty. If she had not, she at least used language sufficient to provide for every possible contingency, and must be presumed to have done so intentionally.

If she

Some other considerations have been advanced, though not very strenuously urged by respondents; but as what has been said in effect disposes of them, it is not necessary to discuss them separately. Nor is it is necessary to refer specifically to the cases cited by them. We have given them a careful examination, and, while we are disposed to think that some of them go perhaps too far, we are of opinion that each of them is readily distinguishable from this case, and that our decision is entirely in accord with the principles laid down in them.

The second and tenth conclusions of law of the court

below are contrary to the views herein expressed, as is also the second sentence of the twenty-fourth finding. That portion of that finding (which is to the effect that Williametta H. Cook has a life estate in said property, and that said Williametta and the defendants Frances H. Lowndes and Elizabeth H. Oulton, have each an undivided one-third interest in the fee thereof, subject to said life estate) is, however, a mere conclusion of law, and should be so treated.

The judgment or decree appealed from is therefore modified by striking therefrom all that portion thereof which is in the following words: "The plaintiffs have fully performed all their duties as trustees in regard," and inserting in lieu thereof the word "as"; also by striking therefrom all that portion thereof which is in the following words: "And that their trust be and the same hereby is terminated as to said described property and every part and parcel thereof"; and the whole of the paragraph next following said words, which begins with the words: "It is further ordered," and ending with the words and figures, "September, 1888, and inserting in lieu thereof the following: "The plaintiffs have performed so much of their duties as trustees as relates to the delivery of the possession thereof to the defendant Williametta H. Cook.

"It is further ordered, adjudged, and decreed that the plaintiffs hold the said above-described two parcels or lots of land, and the personal property contained in said dwelling-house, described in finding 27, upon the further trust to sell the same and convert the same into money upon the death of the defendant Williametta H. Cook, or, in case she do not die until ten years have elapsed from and after the date of the death of said Cynthia Hoff Shillaber, then, at the expiration of such ten years, and, in the latter case, to sell the same subject to the right of the said defendant Williametta H. Cook to occupy and use the same until her death, free of rent; and upon the further trust to apply the proceeds of such sale as directed by the fifth subdivision of the fourth

paragraph of the will of the said Cynthia Hoff Shillaber, deceased, mentioned in finding 3."

The said judgment or decree is further modified by striking therefrom all that portion thereof which is in the following words: "It is further ordered, adjudged

and decreed that the defendant Williametta H. Cook is the owner of a present interest to the extent of the undivided one-third of the fee of the property mentioned in finding of fact 27, and hereinabove particularly described; and that the defendants Elizabeth H. Oulton and Frances H. Lowndes are the owners of a vested future interest to the extent of an undivided one-third of the fee each of said property last above described, subject to the life etsate of said defendant Williametta H. Cook therein."

As so modified the said judgment or decree is affirmed; the appellants to recover the costs of this appeal.

GAROUTTE,

HENSHAW, J., MCFARLAND, J., TEMPLE, J., Garoutte, J., and HARRISON, J., concurred.

Rehearing denied.

[No. 15226. Department One.-June 4, 1895.] REBECCA SPENCER, RESPONDENT, v. WILLIAM L. DUNCAN, APPELLANT.

FINDINGS

STATUTE OF LIMITATIONS-ACCOUNTING-DEMAND.-In an action for an accounting of trust funds, in which the complaint averred a demand upon the defendant before suit brought, which allegation was admitted by the answer, a finding against the defendant's plea of the statute of limitations need not find the date of such demand.

ID. DECISION-FINDINGS OF FACT-CONCLUSION OF LAW-JUDGMENT. -Where, in such an action, the decision of the trial court, in its findings of facts, specially finds the trust relation under which the money was obtained, a judgment entered thereon, decreeing that the money was held in trust, and ordering the same paid to the plaintiff, will not be reversed merely because the decision contained no express "conclusion of law" as to such trust relation.

ID.

ERRONEOUS CONCLUSION OF LAW.-An erroneous conclusion of law is not ground of reversal if the judgment is right.