absurd then to say that the Government would denounce or regrant (for regranting and denouncement are the same thing) a rancho for the purpose of occupation and improvement, which rancho was already granted, occupied, and improved. The power to denounce is derived from the same source as the power to grant, to wit: the law of 1824; and according to this law the power to denounce is not absolute but conditional, and dependent on the fact of abandonment; so that where there is no abandonment there can be no denouncement. From this it results that this land having been continuously occupied by this family, the Mexican Government could not have deprived them of it, even if it had been so disposed; and would therefore have been bound to [524] extend the "definitive title," if it had been asked for. Suppose, then, that this definitive title had been asked for by Jesus and Sisto Berreyesa for themselves, and by the family for all, to which of the two would the Government have given it? The utmost that Jesus and Sisto could say in their favor would be, that they had settled and occupied; but this they offered to do in their first petition for a grant; and which was refused to them for the reason that their occupation alone was insufficient. On the other hand, the family could say that this land having been refused to two because the occupation of two was insufficient, was given to all, on the condition that all would occupy; that all had occupied, and therefore, the Government, having received the consideration from all, should extend the title to all.

To say nothing of honesty, policy would require the Mexican Government to reason in this way; for if they gave the title to Jesus and Sisto, to the exclusion of the other members of the family, then Jesus and Sisto could turn the others off; and thus the Government would find itself in the ridiculous position, first: of granting to two colonists the identical rancho, which because there were only two, it had refused to grant them; second, of being false to meritorious colonists who had been true to it; and third, of thwarting by its own acts the great motive and policy of the whole system of grants, to wit: colonization. The importance of this view of the case will be seen, when it is recollected that one of the modes of colonization provided for by the law of 1824, was by em

presario. This grant, instead of being a grant of eight leagues to a family, might just as easily have been a grant of a hundred leagues to an empresario upon the condition of settling thereon a hundred colonists. If in such a case the Government should prefer the empresario to the colonists, and issue the definitive title, not to them, but to him, the empresario, becoming thus the owner of the land, could immediately turn round and expropriate the colonists, and thereby entirely defeat the object and policy of the Government in making the grant.

The Bastrop case, already cited, shows that this cannot be done. In that case the definitive title was given to the colonists, and not to Bastrop; and to each in proportion [525] to his settlement. This was done at first by the Spanish Provisional Government; and the United States, when they succeeded to the Spanish Government, pursued the same course. (11 Howard, 648, 651, 652.)

Wherefore should the Berreyesa colonists, who have always been, and still are, in possession, be denied the justice which was accorded to the Bastrop colonists? This action of ejectment by Schultz, is in legal effect a suit by Jesus and Sisto, to oust their co-tenants and co-colonists; and as the Mexican Government would not entertain it, so neither should ours, which has succeeded to its obligations as well as its rights.

The unimportance of the person to whom a grant issues, is strongly shown in the case of the Arguello claim to the Rancho Las Pulgas. In that case, José Estrada representing himself as the Executor of Don Louis Arguello deceased, on the twenty-seventh of October, 1835, petitioned the Governor for a grant of the Rancho Las Pulgas to the minor children of said Louis Arguello, to wit: José Ramon and Luis, Maria Concepcion and Maria Josefa, on the ground that the father had been the owner of the land since 1800, and that the titles had been mislaid. On this petition, after taking testimony to show that the minors were Mexicans and had sufficient stock to settle the rancho, the Governor, in November, 1835, made a grant, in which after reciting that Estrada had petitioned for the benefit of the minors, he declares and vests the title thus: "Using the faculties which are conferred on me, by decree of this day, I have come to declare him the owner

* *

thereof by the present letters.” * "In consequence I order that the present, serving as a title to him, be held firm and valid, be recorded in the book thereto corresponding, and be delivered to the petitioner for his security and other purposes."

This is as plain a grant to Estrada as can be made, but as he asked for it for others, and as the others for whom he asked it, went into possession of it, and lived on it, the Court had no difficulty in confirming the claim to them and not to him. (See the grant in this case, United States v. Arguello, 18 How. 542.)

As a question of authority, the case is also plain. The doctrine of the English law is, that "any expression manifesting an intention that the donee of property is not

to have the beneficial enjoyment of the whole or [526] some part of it, will be binding on the conscience of the trustee, and will, in equity, exclude any claim by him to the beneficial interest." (10 Ves. 537.) For this purpose, it is by no means necessary that the donee should be expressly directed to hold the property to certain "uses," or "in trust," though such words being definite and technical would be properly employed. That there is no magic in the words is a rule of equitable construction. Any expressions which show a clear intent to create a trust will have the effect. (1 Myl. & Craig, 401.) Thus, where a gift in a will is expressed to be "for the benefit" of others, or to be at the disposal of the donee "for herself and children," etc., it is a sufficient declaration of the trust. (Hill on Trustees, 65, 66.)

It is a well settled rule of the English law, that it is not necessary for the cestuis to be expressly named, or that the trusts should be expressly declared in the same instrument by which the estate is granted. "All persons who are capable of taking an interest in property at law, may to the extent of their legal capacity, and no further, become entitled to the trust of such property in equity. The beneficial interest in property may also become, and frequently is, vested in objects as cestuis que trust, whose existence is not recognized at law." (Hill on Trustees, 51, 52.) "It is not necessary to the creation of a trust, that a cestui que trust should be named, or in being at the time." (Hill on Trustees, note I.) So in regard

to the legal capacity to convey in trust, "It may be broadly stated, that every person who is capable of making a valid conveyance of property of any description, has also the power of attaching such limitations or declarations to the act of disposition, as will convert the person taking the legal estate into a trustee for the parties to whom the beneficial interest is given." (Ld. 45.) Nor is it necessary that the declaration of the trust should be contained in the same instrument, which vests the legal estate in the trustee." (1 Cox, 1; 2 Myl. & Craig, 684.)

It is not indispensable that the declaration should be made by a formal deed or will. "A simple letter or memorandum, or any writing of a similar untechnical and informal character, will be sufficient, if it clearly express the gift to lie in trust, and sufficiently connect the trustee with the subject matter of the trust." (Hill on Trustees, 64.) [527] *Such a declaration of the trust is sufficient under the Statute of Frauds even. Prior to the Statute of Frauds (29 Charles II.) uses might have been declared by parol; at least in all cases of feoffment by livery. (4 Cruise's Dig. ch. 12, p. 149.) And even in case of a transfer of the freehold by fine or recovery (which was an assurance by matter of record;) though a trust, when intended, must have been declared in writing, yet it was not necessary that it should be so expressed at the time. Whenever a fine is levied and a declaration of the uses of it is afterwards executed, the fine and declaration of uses will be considered as one assurance. (5 Cruise's Dig. 216; Doe v. Whitehead, 1 Doug. 45.)

In this case, however, there can be no mistake as to the character of the grant. The trust is stamped upon the face of the title papers.

W. C. Wallace and A. P. Crittenden, for Respondent.

There is nothing in the last petition which intimates an intention on the part of the applicants to ask for the land in the name of any one but themselves, or to ask a grant in any such form as would give an interest in the land to any other person. Its representations are made to meet a supposed objection in the mind of the Governor that the parties were

asking for more land than, under the Regulations of November 21st, 1828, they would be entitled to receive, in view of the number of their families, and their circumstances. And they meet that objection by the showing of the petitioners that their families included not only their wives and children, but their parents and brothers, and numerous Indians, all of whom the petitioners had to support. These circumstances are required by the second article of the regulations to be stated, and they are precisely those which it was intended should influence the Governor in determining upon the quantity of land to be granted.

The report of the Secretary speaks of this petition as one for the benefit of the applicants, their parents, children, and brothers. And such it undoubtedly was-for all those who constituted a portion of the families of the applicants would derive a benefit from the grant, because it would give to the applicants the means of supporting all those who were dependent upon them. And it is *in this sense, [528] and no other, that the grant itself speaks of the petition of José de Jesus and Sisto Berreyesa, as one for their personal benefit, that of their families, and that of their parents and brothers. The idea of the appellants that, because of this recital in the report and the grant, all those referred to as persons to be benefited must have a direct interest in the land, and occupy the position of grantees, is untenable, either upon reason or authority. (Scott v. Ward, 13 Cal. 474; Frique v. Hopkins, 4 Mart. N. S. 214.)

Neither in the petition, nor the report, nor the grant, is there any distinction made between the families and children of the grantees, and the parents and brothers of the grantees. The same phrase embraces them all. In the petition the grantees say that their own families are large because they include them all, and in the report and grant it is recited that the petition for the land is for the benefit of them all. How can any distinction be made between them? Can the parents or brothers have any different, or higher, or better right than the children? Yet this Court has decided that the children

have none.

The appellants' argument necessarily runs into an absurdity, and no case can more clearly illustrate it than the present.