natural lives, the income therefrom for their own separate use and behoof, free from the debts, charge, or control of their husbands, with the remainder or remainders thereof to their children or grandchildren per stirpes, if any be alive at the time of their death; and if none be alive, then the said remainder shall go to my heirs at law.

"4. I give to my wife, Louise Palmyre Vion Whitcomb, two hundred thousand dollars ($200,000) of my Chesapeake and Ohio railroad bonds, and I recommend her not to dispose of them or to convert them without the distinct advice of my friend Mr. Bruce.

"5. I give to the town of Hancock, New Hampshire, for the maintaining of a free public and unsectarian library, ten thousand dollars of my Chesapeake and Ohio railroad bonds; and also to the said town the further sum of ten thousand dollars of said bonds, one half thereof, or such part of the said one half as may be considered necessary, for the reclamation and embellishment of the Common, so called, in the village of said Hancock, and the rest of said ten thousand dollars as a fund, of which the income shall be used for the increase and maintenance of said reclamation and embellishment.

"6. I give to my nephew, the said Adolphus Darwin Tuttle, and to his son, Charles Whitcomb Tuttle, both of said Hancock, all my interest, either real, personal, or mixed, in the Jimeno Rancho, so called, wholly or partially in the counties of Colusa and Sutter, in said California, and all mortgages, contracts, debts, or dues arising therefrom; and I recommend to my said nephew to leave his portion thereof, after his own death, and the death of his wife, in trust for the said Charles Whitcomb Tuttle, and to his children or descendants, if any be alive at the time of the death of his said son, and if there be none so alive, to Harvard College, Cambridge, Massachusetts, one half of the income thereof to be used by

said college for the assistance of students of said college to complete their regular course therein, and the other half of the income thereof for the general uses of the college, apart, however, from any participation therein by the divinity school.

"7. I give to my hereinafter-named executor, Jerome Lincoln, of said San Franciscoo, all the rest of my property, real, personal, or mixed, except what I may have. in France, of every kind and nature, and not hereinbefore disposed of, after the payment of my debts, in trust, nevertheless, to pay over to my said wife, Louise Palmyre Vion Whitcomb, one third part of the interest thereof, or income therefrom, for and during her natural life, and the other two-thirds parts to my two children, born of her, one, Adolphe, born on or about the twentythird day of February, 1880, and the other, Charlotte Andree, born on or about the fourth day of December, 1882, with the reversion or remainder of the whole three-thirds parts to the descendants per stirpes of the said two children, if any be alive at the time of the death of the said two children; and if none be alive at that time, to Harvard College, in conformity with the provisions named or indicated in section six (6) of this will, having reference to said Harvard College. The said Lincoln is hereby authorized to pay out of said two-thirds parts only such portion as he may deem meet, fit, and proper for the education and maintenance of said two children until they shall have arrived, respectively, at the age of twenty-one years, after which they will be entitled to receive their portion of the yearly income or interest. And the said Lincoln is hereby authorized to appoint his successor or successors in this trust."

It is said in Colton v. Colton, 127 U. S. 309, a case on appeal from the United States circuit court for California, as the rule on the subject laid down by Chief Justice. Marshall: "The first and great rule in the exposition of wills, to which all other rules must bend, is, that the

intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law." Mr. Whitcomb was a lawyer, and understood fully what was necessary in order to vest a trust estate. If he had intended that the property thus willed to Adolphus Tuttle and his son should finally go to Harvard College, as is contended for by the appellant, it was very easy for the former to have said so in unequivocal language. As to the other property mentioned in the seventh clause of his will, he expressly left it, in trust, to Jerome Lincoln to pay over to his, testator's, wife one third of the income thereof during her natural life, and the other two thirds to his two children, born of her, with the reversion or remainder of the whole to their descendants per stirpes, if any were alive at the death of the children; and if no descendants of them were alive at their death, the property to go to Harvard College, in conformity with the provisions named or indicated in section 6 of the will, having reference to that college. If he had intended to create a trust in the sixth section, he would have said so in as plain language as he used in the seventh section.

"It is my advice that governed by his judg

Again, when, in the fourth section, he leaves his wife, two hundred thousand dollars of his Chesapeake and Ohio railroad bonds, he further recommends that she do not dispose of them or convert them without the distinct advice of his friend Mr. Bruce. There it is plain that the solicitude of the husband for the wife's welfare induces him to say to her, in effect: you consult Mr. Bruce and be ment in your action as to the sale or conversion of these bonds." Even to his wife, to whom, from her close alliance to him, such a word as "recommend" might be intended to have more binding force than to a man like Mr. Tuttle, he does not use that word in a sense to convey any particular injunction or command, disobedience to which would affect her title to the property in any way, or by means of which Mr. Bruce acquired any in

LXXXVI. CAL.-18

terest in the property. And in the third section, where he recognizes the business capacity of and his confidence in A. D. Tuttle and Henry Foster Whitcomb, by making them trustees for two persons, he uses apt and unambiguous language. In fact, the whole will, taken together, shows that the testator fully understood what he desired done with his property, and that when he intended trusts to exist he said so in plain language. And when he gave persons property, and recommended them to do so and so with it, he meant to leave them free to act upon his advice or not, as they saw fit, but did not intend in any way to limit the estates he had bequeathed them in the first part of the sections of the will, giving the property.

Such being the plain intent of the testator, it is clear that the trial court gave proper construction to the section of the will in controversy, and we advise that the judgment appealed from be affirmed.

BELCHER, C. C., and HAYNE, C., concurred.

The COURT. For the reasons given in the foregoing opinion, the judgment appealed from is affirmed.

[No. 13885. In Bank.-November 3, 1890.]

ZELMIRA RAMIREZ Y CORTEZ, PETITIONER, V. SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, RESPONDENT.

ENFORCEMENT OF JUDGMENT STATUTE OF LIMITATIONS FEE OF COMMISSIONER IN PARTITION-LIEN UPON LAND PARTITIONED.A decree in a probate proceeding for partition allowing the commissioner appointed to make partition a specified sum as a fee for his services and expenses incurred, and purporting to make it a lien upon the land and premises partitioned, is, so far as the commissioner is interested, a judgement for the recovery of money, and cannot be enforced by execution after the lapse of five years from the entry thereof, assuming the power of the probate court to declare it a lien and to award execution in satisfaction thereof against the land partitioned, which is doubtful.

ID. CONSTRUCTION OF CODE COMMISSIONER AS "PARTY" TO JUDGMENT.-A commissioner in partition who is allowed a fee for his services is a "party in whose favor judgment was given," within the meaning of the word "party," as used in section 681 of the Code of Civil Procedure. ID.-SUSPENSION OF LIMITATION-STAY OF PROCEEDINGS.-An order staying procedings upon a judgment and order of sale does not operate to suspend the running of the statute of limitations for the enforcement of the judgment.

ID. EXCESS OF JURISDICTION-WRIT OF REVIEW.-An order granting an execution upon a judgment awarded in the superior court, as a court of probate, after the lapse of five years from the entry of judgment, is in excess of the jurisdiction of the court, and will be annulled by the supreme court upon a writ of review.

APPLICATION to the Supreme Court for a writ of review to annul an order of the Superior Court of the city and county of San Francisco granting an execution. The facts are stated in the opinion of the court.

Garber, Boalt & Bishop, and J. P. Phelan, for Petitioner.

The superior court, sitting in probate, has no power to declare a lien, or to award execution for the satisfaction thereof. The probate jurisdiction of the superior court is wholly distinct from its common-law and equity jurisdiction. (Guardian of Allgier, 65 Cal. 228; Richards v. Wetmore, 66 Cal. 365; Estate of Hudson, 63 Cal. 457; Dean v. Superior Court, 63 Cal. 478; Estate of Bur ton, 64 Cal. 428.) A probate proceeding is not a civil action. (Estate of Scott, 15 Cal. 220; Ex parte Smith, 53 Cal. 207.) Declaring and enforcing a lien is an exercise of purely equitable jurisdiction. The probate court had no equitable jurisdiction. (Grimes v. Norris, 6 Cal. 625; 65 Am. Dec. 545; Haverstick v. Trudel, 51 Cal. 433, 434; Wetzler v. Fitch, 52 Cal. 638; Meyers v. Farquharson, 46 Cal. 200; Willis v. Farley, 24 Cal. 499.) Nor has the superior court, sitting in probate. (Estate of Hudson, 63 Cal. 457; Dean v. Superior Court, 63 Cal. 478.) The statutory power to partition between distributees, conferred by section 1675 of the Code of Civil Pro