The opinion
Gray, J. (concurring)
While I think the question presented by this appeal is by no means free from doubt, I shall vote for an affirmance of the judgment. I am, however, unable to concur in the views of Judge Ebstch:, which lead to that result. If an express trust was created, then it seems to me it was a single trust for the three daughters, and invalidated the testamentary disposition by suspending the absolute ownership and making the estate inalienable for ten years. I place my vote upon the ground that the disposition of the residuary estate can be upheld and effectuated by the executors under a power in trust. I think the terms employed by testatrix are not so precise and unmistakable in meaning as to preclude us from saying that one of the statutory express trusts was not created by their use. The dominant idea and the plain intention of testatrix were to keep the estate together until at the expiration of a period of ten years, if not sold before, it should be sold and converted into money and partitioned among her daughters. All the acts which she requires in the fifth and sixth clauses are to be performed by her executrices, and could be performed under a power. The important act of partitioning the estate under the sixth clause could only be done under a power. With some degree of hesitation, therefore, I express the opinion that the estate vested, at the death of testatrix, in the three daughters, subject to the execution of the powers in trust conferred upon the executrices of the will.