nothing more left in the grantor than the equivalent of a life estate; and we think that the contentions of the respondent on this point are fully answered by the opinion of this court rendered by Mr. Justice Henshaw in Nichols v. Emery, 109 Cal. 323; 50 Am. St. Rep. 43.

"The main point of respondents-at least, the one most extensively argued and most strenuously insisted on-is that the tenth clause of the deed is void, because it creates a perpetuity which is not for eleemosynary purposes, and that, being for an unascertainable portion of the estate, and the other trusts being dependent on it, the whole fails. By prior parts of the deed, all the income of the property conveyed is given to the trustees. By the sixth and subsequent clauses of the deed, prior to the tenth clause, it is provided that the trustees, out of the income and profits of the property, shall 'pay annually' certain specified sums to various beneficiaries, many of them being private individuals, to whom bequests are given for their own benefit during their lives, and others being certain persons and associations to whom bequests are given for charitable purposes. By clause 8 it is provided that, if the income of the property in any one year shall exceed or be less than the total amounts directed to be paid annually to the beneficiaries, the amount to be paid each 'shall be increased or diminished in proportion to the amount so directed to be paid to them respectively.' Then comes the tenth clause, which is as follows: '10. The said trustees shall, at all times before making any payments of income under this trust, set aside and retain the sum of twenty-five dollars in each year, and any further sum that may be necessary, to provide for the care and preservation of the cemetery lot of the party of the first part in the Masonic Cemetery in San Francisco.' We will assume for the purposes of the case that this trust being for the preservation of a single cemetery lot is not for a charity, and therefore invalid; but we do not agree with respondents that this vitiates all or any of the other declared trusts. Counsel for respondents repeatedly speak of this tenth clause as establishing 'the primary trust'; but we do not see that its relative position in the deed, or its magnitude or importance, or the whole deed construed together, or the evident main purpose of the trustor to be gleaned from the whole instrument, at all warrants the assertion that the trust declared

in the tenth clause should be considered as a primary trust; and it is not so interwoven with the entire deed that it cannot be easily separated from the other trusts so as not to invalidate the latter. The rule of construction involved here, as crystalized in section 1317 of the Civil Code, is that: 'A will is to be construed according to the intention of the testator. Where his intention cannot have effect to its full extent, it must have effect as far as possible.' The principle which should govern courts in determining questions like the one now under review, whether they arise out of wills or deeds, is expressed by the maxim, Ut res magis valeat quam pereat; and, under the inspiration of that maxim, courts have firmly established the principle that valid trusts should not be disregarded because in the instrument creating them one particular invalid trust is declared, unless the latter is so inseparably blended with the others that it cannot be eliminated without destroying the main intent of the trustor, or working manifest injustice to other beneficiaries. Among the various authorities cited by appellant to this point, Darling v. Rogers, 22 Wend. 483, Vanschuyver v. Mulford, 59 N. Y. 432, Kennedy v. Hoy, 105 N. Y. 134, and Kane v. Gott, 24 Wend. 641, 35 Am. Dec. 641, may be mentioned as cases where the subject is fully discussed and the principle aptly stated. And the rule is naturally and justly applicable to the case at bar. By the clauses of the deed which precede the tenth, the trustees are to receive all the income of the property conveyed and to pay it annually to a large number of named beneficiaries; and, afterward, it is provided by the tenth clause that there shall be retained from the aggregate amount of the income and annuities twenty-five dollars, or as much more as may be necessary to care for the cemetery lot. It requires no strained view to see that this provision is incidental and subordinate to the main scheme, and is a mere charge upon the bequests or annuities; and that if the charge be invalid the beneficiaries take the bequests free of the invalid charge. The valid trusts can be easily carried into effect, after eliminating the tenth clause, without interfering with what were evidently the main purposes of the trustor, and without doing any injustice whatever to any one of the other beneficiaries. The reservation for the cemetery lot is in an independ

ent and single clause; it appears in the instrument after clauses which dispose of the entire income; it is easily separable from all the other provisions of the instrument, and, therefore, its invalidity does not carry with it, or affect, the trusts which are valid.

"It is contended by respondents that the provisions for the payment of certain sums to Corinthian Lodge, Washington Chapter, and Marysville Commandery-all being Masonic bodies are invalid, because they are not charitable bodies, and because they are not bound to use the bequests for charitable purposes. But, in the first place, it is not necessary to determine whether a Masonic body is or is not a charitable institution, for it is not necessary that a trustee for charitable purposes should be itself a charitable institution; it is sufficient if the bequest be for a charitable purpose. In each of the instances the bequest is made to the Masonic body 'for the use of the widows' and orphans' fund of said lodge,' or chapter, or commandery. This is a compliance with the legal essence of a valid charity-that is, that it is public, and is vague and uncertain as to the individuals to be benefited or relieved. It is not to be presumed that the Masonic bodies named will not, as trustees, use the trust funds for the purposes expressly declared by the trust; and, on the other hand, for the purpose of making the trust operative it will be presumed that the trustee will properly apply the funds. As was said in the Estate of Hinckley, 58 Cal. 457: 'Courts look with favor upon all attempted charitable donations, and will endeavor to carry them into effect, if it can be done consistently with the rules of law. A bequest intended as a charity is not void, and there is no authority to construe it to be legally void, if it can possibly be made good.'

"Counsel for respondents present the point that by the deed, construed as a part of the will, more than one-third of the estate of the testator is given for charitable purposes, in contravention of section 1313 of the Civil Code. With respect to this matter it may be said, in the first place, that it does not appear that more than one-third of the estate is thus given, for the amount of the annuities which go to charitable purposes is less than one-third of the whole income, so that at least for the

present the excess does not appear, and it is only by speculations leading into the distant future that the result alleged could be in any way arrived at. The point, however, does not arise at all on the record in this appeal. Under section 1313 the only consequences following charitable devises or bequests of more than one-third of a testator's estate are that 'in such case a pro rata deduction from such devises or bequests shall be made so as to reduce the aggregate thereof to one-third of such estate.' But in the case at bar the petition for distribution and the finding and decree of the court there is no reference whatever to any question that might arise under section 1313. It is alleged, and found and decreed-not that appellants are entitled to only one-third-but that they are not entitled to any part whatever of the estate. It is decided that all attempts to devise or convey any part of the property to appellants in trust are void; 'that no bequest or devise is made of any property or estate of the testator in or by said will, or any of its provisions, and no bequest or devise at all was or has been made by the aforesaid testator,' and that by the deed dated October 27, 1892, from the deceased to the appellants, 'the said real property was not conveyed, nor any part of it.' Moreover, upon the theory that appellants were entitled to one-third of the property, the court could not, in a decree of partial distribution, have segregated appellants' undivided interest in all the property and set off all the land in severalty to other claimants. But, as before stated, this was not attempted.

"The foregoing views make it unnecessary to discuss other points made by appellants, and we have endeavored, as far as possible, to consider those questions upon which the rights of the parties ultimately depend. We see no other points made by respondents which are necessary to be considered, except that it is proper to say that the trust deed was in evidence for the general purposes of the case, and that it was fully identified as the instrument referred to in the will. For the reasons above stated the decree of distribution was erroneous."

For the foregoing reasons the order of partial distribution appealed from is reversed.

[S. F. No. 2095. In Bank.-March 3, 1900.]

EUGENE F. SMITH et al., Petitioners, v. E. I. JONES, Judge of Superior Court of San Joaquin County, Respondent.

EJECTMENT PLEA OF FORMER JUDGMENT QUIETING TITLE-PENDENCY OF APPEAL-STAY OF PROCEEDINGS-MANDAMUS.-In an action of ejectment, where the answer pleaded a former judgment in the same court quieting the title of the defendant as against the plaintiff, and that an appeal was pending therefrom, and the plaintiff demanded judgment at the conclusion of the trial, the court had jurisdiction to set aside the submission of the cause, and to grant an application of the defendant to stay all proceedings in the action, to await the determination of the appeal in the former action to quiet title. The granting of such stay was a proper exercise of discretion; and the court cannot be compelled by mandamus to render a decision and judgment in the action of ejectment.

PETITION for mandamus in the Supreme Court to compel a Judge of the Superior Court of San Joaquin County to render a decision and final judgment. E. I. Jones, Judge.

The facts are stated in the opinion of the court.

L. W. Elliott, and Elliott & Elliott, for Petitioners.

J. G. Swinnerton, for Respondent.

VAN DYKE, J.-Mandamus to compel the respondent, as judge of the superior court of San Joaquin county, to render a decision and final judgment in an action of ejectment tried in his court, wherein the petitioners were plaintiffs and Thomas R. Smith defendant.

In his answer in the action of ejectment, the defendant therein, Thomas R. Smith, sets forth that on the twenty-seventh day of February, 1899, in a certain action then pending in said court, in which he, said defendant, was plaintiff, a judgment and decree was by said court duly given and made, whereby it was ordered, adjudged, and decreed that said defendant in the ejectment suit, plaintiff in the former action, was the owner in fee of the lands and premises described in the complaint in said ejectment suit, and that the defendants therein, the plaintiffs in the ejectment suit, were not the owners of, and that none of them had any, and never had any, right, title,