IN RE: EASTER'S ESTATE.

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District Court of Appeal, Second District, Division 3, California.

IN RE: EASTER'S ESTATE. CALIFORNIA TRUST CO. v. JONES ET AL.

JONES v. SECURITY–FIRST NAT. BANK OF LOS ANGELES ET AL.

Civ. 13920.

Decided: July 23, 1943

Stephens, Jones, Inch & La Fever, of Los Angeles, for appellant California Trust Co. B. R. Ware, of Los Angeles, for appellant Paul W. Jones. Craig & Weller and Frank C. Weller, all of Los Angeles, for respondents Martha B. Todd, Elizabeth B. Marriott, Grace Winkler, and Kathleen Broadridge. Gibson, Dunn & Crutcher and E. H. Conley, all of Los Angeles, for respondent Security–First Nat. Bank of Los Angeles.

By the decree of distribution of the estate of Alfred Easter, deceased, a trust was set up under the provisions of his will. On the termination of this trust the trustee filed its final account with a request that the court construe that decree and determine to whom the trust property remaining in its hands should pass and be delivered. The trial court, proceeding under section 1200 of the Probate Code, made an order which, in part, determined that the trust property passed to respondents and directed that it be delivered to them. Other claimants have appealed from these parts of the order and their appeal is now before us for consideration.

The decree of distribution was made October 3, 1923, and distributed the entire estate to a trustee, in trust to manage the property and from the income to pay $300 per month to Catherine Easter, widow of Alfred, and the balance to the children of Alfred in a specified manner, with further provisions in case of the death of any child. This decree contained the following provision upon which the question before us arises: “Upon the death of the said Catherine Easter, the trust hereinbefore referred to shall terminate and all of the property then in the hands of the trustee or in its possession or control, shall go to and vest in the heirs at law of the said Alfred Easter, deceased, in accordance with the statute of succession of the State of California in force in the month of March, 1920, and the trustee is directed to convey, deliver and pay over all the corpus of said trust fund then in its possession or under its control unto such heirs in accordance with the statute of succession of the State of California in force in the month of March, 1920.”

At the time of the death of Alfred Easter on February 1, 1923, his heirs, according to the statute here mentioned, were his widow, Catherine, a son, Ephraim, and three daughters, Martha B. Todd, Elizabeth Marriott and Kate B. Gherky. None of these children was the daughter of the widow. During the lifetime of the widow, the daughter Kate B. Gherky died, leaving two children, Grace Winkler and Kathleen Broadridge, and the son Ephraim died leaving no issue, so that, at the death of Alfred's widow on January 8, 1942, which terminated the trust, the heirs of Alfred, according to the statute referred to in the decree, if heirship were then ascertained, would have been the respondents herein, who are Martha B. Todd, and Elizabeth Marriott, his daughters, and Grace Winkler and Kathleen Broadridge, children of the deceased daughter. The question here for decision is, whether the identity of the “heirs” of Alfred Easter, to whom, by the decree of distribution, the remainder interest after the termination of the trust is distributed, is to be determined as of the time of his death or as of the time of termination of the trust. The respondents appeared in the trial court and claimed the whole of the property on the theory that the proper time was that of the termination of the trust, and they were therefore the only heirs. The trial court agreed with them and gave judgment accordingly. The appellants, who are the personal representatives of the estates of the widow and of the son, Ephraim, respectively, resisted this claim and now seek a reversal of the order on the theory that the time with respect to which the determination of the identity of the heirs of Alfred should be made is that of his death, that their respective decedents were heirs and took a vested interest in remainder at that time, and that therefore the estates represented by them are entitled to share with respondents in the trust property. We conclude that appellants' contention is well founded.

The word “heirs,” whether used in its ordinary sense or as a technical term, designates the persons who would, by law, succeed to the estate of a person in case he should die without disposing of it by will. (Estate of Watts, (1918) 179 Cal. 20, 175 P. 415; Prob.Code, sec. 108.)

“It is a general rule of testamentary construction, so universally recognized as to render unnecessary a full citation of the cases which support it, that, in the absence of clear and unambiguous indications of a different intention to be delivered from the context of the will, read in the light of the surrounding circumstances, the class described as testator's heirs, or such persons as would take his estate by the rules of law if he had died intestate, to whom a remainder is given by will, is to be ascertained at the death of the testator. (33 L. R. A. (N. S.), p. 2, note.)” (Estate of Newman, (1924) 68 Cal.App. 420, 424, 229 P. 898; see also note in 49 A.L.R. 178 and supplementary note in 127 A.L.R. 604, where substantially the same rule is stated, with many supporting citations.) In Estate of Newman, supra, the court further said, at page 429 of 68 Cal.App., at page 902 of 229 P.: “Mere words of futurity, without the adverb of time, are insufficient to preclude the application of the general rule. Mortimer v. Slater, L.R. 7 Ch.Div. 322. Words expressive of future time are to be referred to the vesting in possession, if they reasonably can be, rather than to the vesting in right. In re Kenyon et al., 17 R.I. 149, 20 A. 294, 296.” This rule, with supporting authorities, also appears in notes, 49 A.L.R. 186, 187 and 127 A.L.R. 609, 610. The will considered in Estate of Newman, supra, provided that upon the termination of a trust created by it “said Trustee shall convey, deliver, pay and transfer to my heirs at law, wherever and whoever they may be, according to the laws of succession of the State of California, all of said trust estate.” Applying the rules above quoted to this provision, the court held that those who were the testator's heirs at the time of his death took a vested remainder in the trust property. The words there construed are very much like those used in the decree of distribution here and we think the construction there adopted should be given the decree here. The statement in the decree that at the termination of the trust the property shall “vest” in the heirs can, when considered with its context, be construed as referring to a vesting of the actual enjoyment only, rather than the right to the property, and in view of the presumption in favor of the vesting of testamentary provisions at death (Prob.Code, sec. 28, formerly Civ.Code, sec. 1341; Estate of Newman, supra, 68 Cal.App. at page 424, 229 P. 898; In re De Vries, (1911) 17 Cal.App. 184, 190, 119 P. 109), it should be so construed here. This context includes the provision that on expiration of the trust the property “shall go to” the heirs. These are “clear words of direct devise” at the time of death (Estate of Wallace, (1938) 11 Cal.2d 338, 341, 79 P.2d 1094), and their effect to that end is not defeated by the company of the word “vest” (In re De Vries, supra, at pages 191, 192, 119 P. 109) nor by the provision that the trustees shall “convey, deliver and pay over” the trust fund. (Estate of Wallace, supra; Estate of Newman, supra.)

The further question arises here, whether the fact that the life tenant, whose estate intervenes before that of the “heirs” who are to take in remainder, is also one of those heirs, affects or defeats the application of the rule of construction above stated. Nothing was expressly decided on this question in Estate of Newman, supra, but all save one of the life tenants there were also heirs, and the decision upholds their right to share in the remainder as heirs. This holding was approved in Estate of Goldberg, (1938) 10 Cal.2d 709, 714, 76 P.2d 508, where the court further cited as authority a note in 13 A.L.R. 615, 620. In that note, at the place to which reference was thus made, appears this statement on the point: “It is held that although the circumstance that the one who is a member, or the sole member, of the class to which the limitation over is made, is the first taker, is properly to be taken into consideration in determining whether the testator has impliedly excluded such first taker from participation in the gift over, it is not, of itself, sufficient to prevent the first taker from so participating, both in cases where the first takers were a part of the members of the class [[[[citing cases], and in cases where they were the sole members of the class [[[[citing cases].” Further citations of cases to the same effect are made in supplements to this note, appearing in 30 A.L.R. 915, 917, and 61 A.L.R. 1011, 1014, and in other notes at 49 A.L.R. 182–183 and 127 A.L.R. 607. For an illustrative case see Brown v. Spring, (1922) 241 Mass. 565, 135 N.E. 701. Following this rule here we hold that no sufficient reason appears for excluding the estates represented by appellants from participation in the remainder interest.

The trial court found that it was the intention of Alfred Easter to pass the trust estate on the termination of the trust to his blood relatives, and respondents now invoke the rule, declared in Estate of Hartson, (1933) 218 Cal. 536, 540, 24 P.2d 171, that “where the provisions of a will are capable of two interpretations, under one of which those of the blood of the testator will take, while under the other the property will go to strangers, the interpretation by which the property goes to those of the blood of the testator is preferred.” The foundation of this rule is that the will be capable of two interpretations. We do not find that foundation present here. It is to be noted that we are dealing here with the decree of distribution, not the will, that if there should be any inconsistency between the two the decree must control, and that in construing the decree the will can be considered only for the purpose of clearing up some ambiguity, vagueness or uncertainty in the decree. (Estate of Goldberg, (1938) 10 Cal.2d 709, 713, 76 P.2d 508; Keating v. Smith, (1908) 154 Cal. 186, 191, 97 P. 300.) We find no such uncertainty, ambiguity or vagueness here when the decree is construed by the aid of the rules of interpretation already stated. The decree does not limit its benefits to those who are “of the blood” of Alfred Easter. That is a technical legal phrase, meaning, to be descended from the person referred to or from the same common stock or from a common ancestor. (11 C.J.S., Blood, p. 366.) A large part of the income of the trust here goes to Alfred's widow, and another part, in the contingency that his son Ephraim dies without issue––the contingency that in fact occurred––goes to Ephraim's widow. Neither of these beneficiaries is, in the legal sense, of the blood of Alfred, as far as appears from the record. The provision for disposition of the corpus is only that already quoted from the decree and it contains no words suggesting that the disposition of that corpus is limited to heirs who are “of the blood” of Alfred Easter. As the Supreme Court said in Estate of Watts, supra, (1918) 179 Cal. 20, 23, 175 P. 415, any such suggestion is based on mere conjecture and can have no force here.

Our conclusion on the matter already discussed makes it necessary for us to consider another point. Alfred Easter declared in his will that his estate consisted largely of community property. The representative of his widow's estate offered evidence tending to show that certain specific parts of the remaining trust property were community property but this evidence was rejected on the ground that the widow had waived her right to claim any community property interest in the estate. Unless she had made such waiver and it was applicable here the evidence was clearly proper, for her right as heir would be greater in case of community property than it would in case of separate property. The statute of succession in force in 1920, referred to in the decree, was contained in the Civil Code, which then provided, so far as material here, that “upon the death of the husband one half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband” (Civ.Code, sec. 1402, as originally enacted in 1872), and that in case of the husband's separate property, where he leaves a wife and more than one child and no will, one third of such property goes to the surviving wife. (Civ.Code, sec. 1386, subd. 1, this particular provision of which had been the same since its original enactment in 1872.) The share of the community property which the wife took under this provision went to her as an heir of her husband. (Estate of Moffitt, (1908) 153 Cal. 359, 95 P. 653, 1025, 20 L.R.A.,N.S., 207.)

Annexed to the will itself was a writing signed by the widow declaring that “I hereby promise and agree that I will take under the terms of this will, which are satisfactory to me, and will not elect to take or claim any part of the estate of Alfred Easter as my share of the community property.” In addition to this she signed and filed in the estate proceeding, before distribution, a paper stating that she “has elected, and does hereby elect, to take and accept the share of the property of said estate to which she would be entitled under the terms of the last will and testament of said deceased and the codicils thereto * * * and hereby waives any claim which she might make or assert in or to any of the property of said estate by reason of any community interest or share that she may have or be entitled to therein.”

For the purposes of this decision we assume that the terms of the will and the condition of the testator's property were such as to put the widow to an election whether to take under the will or to assert her community rights and that by these papers she did make such an election. We do this without inquiry into the validity of either assumption because of our conclusion that neither of these waivers is applicable to the disposition of the corpus of the trust property after the termination of the trust. When a widow, in such cases, is put to an election, it is merely an election whether to take the provision made for her in her husband's will or to take her statutory share of the community property. If she takes under the will, her election so to do is to be strictly construed and no rights should be held to have been surrendered by it except by clear and explicit language. (Estate of Whitney, (1916) 171 Cal. 750, 756, 154 P. 855.) The papers signed by the widow here constituted a clear and explicit declaration of her intention to take the provision made for her by the will but they did not clearly, explicitly or at all waive any claim she might have as to the proper construction of the will. On this matter no election was required of her. What she waived was the right to defeat the will by claiming adversely to it the share of the community property which would go to her by law and which the husband could not dispose of otherwise by will without her consent. What her estate now claims is a right to take under the will the share of the community property pointed out by the will, that is, the share which the succession statutes of 1920 would give her as an heir. The waiver and the present claim are not inconsistent.

The portions of the order appealed from are reversed and the trial court is directed to retry and determine the issues as to what parts of the trust property remaining in the hands of the trustee were community property of Alfred Easter and his wife, Catherine Easter, and thereupon to enter an order in accordance with the conclusions stated in the opinion of this court filed herein.

I dissent. In my opinion the order of the trial court should be affirmed.

One of the appellants is the administrator of the estate of Catherine Easter, who was the widow of the testator Alfred Easter and was the one whose life determined the duration of the trust herein. Catherine was not the mother of the testator's children, and it does not appear that she had issue. Ephraim Easter, a son of the testator, and one of the beneficiaries of the trust, died without issue prior to the time his (Ephraim's) wife died. His wife died prior to the time Catherine died. The other appellant is the administrator of the estate of Ephraim. In other words, the appeals are in behalf of the heirs of the widow of the testator, and in behalf of those who would succeed to the estate of Ephraim, who apparently are the heirs of his widow. The respondents are the children and grandchildren of the testator.

The decree of 1923, made “in pursuance of and according to the provisions of the last will of said decedent,” stated: “Upon the death of the said Catherine Easter, the trust hereinbefore referred to shall terminate and all of the property then in the hands of the trustee or in its possession or control, shall go to and vest in the heirs at law of the said Alfred Easter, deceased, in accordance with the statute of succession of the State of California in force in the month of March, 1920, and the trustee is directed to convey, deliver and pay over all the corpus of said trust funds then in its possession or under its control unto such heirs in accordance with the statute of succession of the State of California in force in the month of March, 1920.” (Italics added.)

The will stated: “This trust shall terminate upon the death of my said wife Catherine,” and, “Upon the termination of this trust my said Trustee shall convey, deliver and pay over all the corpus of said trust fund then in its possession or under its control unto my heirs at law in accordance with the present statute of succession of the State of California.”

The decree of 1923 used practically the same language, in regard to the heirs, as was used in the will. The words of the will, “heirs at law,” were repeated in the decree, and although an ambiguity existed by reason of the intervening life estate as to the meaning of those words, the only part of the decree which indicated an attempt to interpret those words, or to designate in clear language whether those words meant persons who were living at the time of the death of the testator or those who were living at the time of the death of the life tenant (Catherine, his wife), were the words, “* * * the property then * * * shall go to and vest in,” preceding the words, “heirs at law.”

The will did not include the words, “shall go to and vest in,” preceding the words, “heirs at law,” or at all. The addition of those words in the decree, thereby making the statement that “the property then * * * shall go to and vest in the heirs at law,” indicates that the judge who signed the 1923 decree had in mind that the passing of title to the property was to occur in the future and that title had not passed at the time of the death of the testator. It is argued by appellants, however, that the statement, “then * * * the property shall go to and vest in the heirs at law,” did not mean that the property would go to and vest in the heirs in the future, but it did mean that the property had already gone to and had vested in the heirs; and that the word “property” did not mean property, but meant “enjoyment of property.”

That provision of the decree, relative to the property then vesting in the heirs, was stated in common, ordinary words which are generally understood to mean precisely what was stated; namely, that the property would at a future time pass to and become the property of the heirs. If it be considered that the words, “heirs at law,” in the 1923 decree, although merely repeated from the will, were used in a technical sense, owing to the fact that they were used by a judge, it is to be noted that the technical meaning of those words, under circumstances involving a precedent life estate, was favorable to the children according to the case law of this state at the time they were used. In re Winter's Estate (1896) 114 Cal. 186, 45 P. 1063; Estate of Wilson (1920) 184 Cal. 63, 193 P. 581. The matter of the Estate of New–man, 68 Cal.App. 420, 229 P. 898, decided in August, 1924, upon which appellants rely, had not been decided at the time the 1923 decree was made. It is assumed that the judge had the case law in mind at the time he made the decree, and intended that the words used by him should be interpreted in accordance with the existing case law. The 1923 decree became final, of course, without an appeal by the children of Alfred Easter, but there was nothing in the decree or the case law to indicate that the children were aggrieved by the decree and entitled to appeal therefrom, and nothing appeared otherwise to indicate that the children were aggrieved by the 1923 decree until the complex interpretation of the decree was made by the strangers in blood after the expiration of 19 years. If, however, that provision, “then * * * the property shall go to and vest in the heirs at law,” was susceptible also of such an interpretation as that placed upon it by appellants through an intricate process of legal reasoning, then the decree was ambiguous and vague, and reference should be made to the will upon which the decree was based to ascertain the meaning of the decree. It was stated in the Estate of Goldberg (1938) 10 Cal.2d 709, 713, 76 P.2d 508, 510: “* * * should the language of such a decree appear to be ‘uncertain, vague or ambiguous,’ it is subject to judicial explanation or interpretation, and in such circumstances, the will itself may be used to establish the true meaning and intent of the decree.” At the time the judge signed the 1923 decree it was not an established rule in this state that the use of the word “heirs” under similar conditions, involving an intervening life estate, meant exclusively those who were living at the time of the testator's death (and it is not such rule now), and in other jurisdictions the interpretations of that word under such circumstances were not (and are not) in harmony. At that time in some jurisdictions the rule was that words as to survivorship under such circumstances referred to the time of the testator's death only when there was no other time to which such words could refer. For these reasons, also, the decree, which did not state expressly who were intended by the use of the word “heirs,” was ambiguous and vague, and it was proper to consider the will to determine the meaning of the decree.

“The paramount rule of construction is, of course, that effect must be given, if possible, to the intent of the testatrix [testator], if that intent can be ascertained.” Estate of Hartson (1933) 218 Cal. 536, 539, 24 P.2d 171, 173. Alfred Easter provided in his will that his wife should have an income of $300 each month during her life, and a place in which to live without payment of rent; that if the trustee purchased a place to be used as her residence, the title thereto should not pass to her, but should be in the trust estate; that certain proportions of the income above the $300 were to be paid to his children during the life of his wife, or to the children of any deceased child by representation; that in the event of the death of his son Ephraim before Catherine's death, a proportion of the income should be paid to Ephraim's wife during Catherine's life. He also created the trust above mentioned. He provided further that no beneficiary should have the right to anticipate any of the income, or to sell, pledge or otherwise alienate the income, and that the income was donated by him for support and maintenance only. He stated also that his wife had agreed with him that the provisions in his will were for her best interests, but he stated further that if she elected to take a share of the community property then the provisions in his will for her benefit should lapse. The wife, Catherine, signed a statement at the end of the will that she promised and agreed to take under the terms of the will, which were satisfactory with her, and she would not take any part of the estate as her share of the community property.

The provision of the will that the wife should not have title to a house purchased for her indicates an intention to exclude her from the ownership of any part of the trust. The provision for payment of income to Ephraim's widow during Catherine's lifetime indicates an intention to limit the interest of his daughter–in–law to support while Catherine lived. The references in the spendthrift provisions to income only and not to the corpus, indicate that the testator did not consider any remainder should vest in the beneficiaries during the period of the trust. The references to the issue of deceased children indicate the desire of the testator as to the class who should take in the event of the death of any of his children.

Catherine was not the mother of the testator's children. She and Alfred had been married since 1896. It does not appear that she had issue or that she had any known relatives. She had agreed with Alfred, for some reason that does not appear in the record, that it was for her best interests not to claim a share of the community property but to take a substantial income and a rent–free place of abode for life. It does not seem reasonable that the testator intended, after making ample provision for her comfort during her life, to also give her, as appellants contend, a vested interest in the trust property at the time of his death and to suspend the “enjoyment” of that interest by her until after she died. Such a construction would mean that it was his intention to provide generously for her heirs by not referring to them generally or at all as her heirs, but including them as beneficiaries on the unexpressed theory that his widow, the life tenant, would be entitled to a vested interest in the trust fund at the time of his death.

The statement in the will that, “Trustee shall convey * * * the corpus of said trust fund then in its possession * * * unto my heirs at law in accordance with the present statute of succession of the State of California,” was for the purpose of providing a method for determining who should receive the property, and in what proportions, upon the termination of the trust. Whether the word “heirs” in the will was used in its technical sense is to be determined from the context of the will. Appellants state that the will appears to have been drafted by an attorney and the word “heirs” was used presumably in its technical sense. Although the will in the Estate of Wilson (1920) 184 Cal. 63, 193 P. 581, was prepared by an attorney “of recognized standing and ability,” the court said, at page 71 of 184 Cal., at page 584 of 193 P.: “The case is one where ‘the context clearly indicates' (section 1327, Civ. Code) that the word ‘heirs' was not used in the strict technical sense * * *.”

As above stated, it was not an established rule in this state, when the decree was signed, that the use of the word “heirs” under similar conditions, involving an intervening life estate, meant exclusively those who were living at the time of the testator's death.

In the matter of In re Winter's Estate (1896) 114 Cal.186, page 187, 45 P. 1063, the will provided: “* * * which [referring to a ranch] I will and bequeath to my wife, Annie Winter, for the remainder of her life. Then it is to be sold, and the proceeds to be divided between my surviving brothers and sisters.” Four brothers and one sister survived the testator; but two of the brothers died during the life of Annie Winter. After the death of Annie the ranch was sold and application was made for distribution of the proceeds. The heirs of the deceased brothers contended that two–fifths of the proceeds should be distributed to them. Distribution was made to the brothers and sister who survived Annie, and did not include the heirs of the two deceased brothers. On appeal the court said, on page 188 of 114 Cal., on page 1064 of 45 P., in affirming the judgment: “The solution of the question depends upon whether the survivorship mentioned in the will relates to the time of the death of the testator, or to the time when the ranch was to be sold, after the death of the widow, Annie Winter. * * *” It was said further therein, on page 189 of 114 Cal., on page 1064 of 45 P.: “The meaning of that clause of the will now under consideration seems to be plain. The widow took a life estate; at her death the ranch to be sold, and the proceeds to be divided among the surviving brothers and sisters, i.e., to the brothers and sisters then surviving. The exact wording of the clause is: ‘To my wife, Annie Winter, for the remainder of her life. Then it is to be sold and the proceeds to be divided between my surviving brothers and sisters.’ I do not think that can be construed to mean the brothers and sisters surviving at the time of the testator's death.”

It is to be noted that the provision in the decree under consideration in this present matter, “* * * all of the property then * * * shall go to and vest in the heirs at law * * * and the trustee is directed to convey, deliver and pay over all the corpus * * * then in its possession * * *,” is similar to the clause under consideration in that matter, “then it is to be sold and the proceeds to be divided between my surviving brothers and sisters,” which the court interpreted to mean, as above shown, “brothers and sisters then surviving.” Following that interpretation, the words in the present case, “then * * * shall go to and vest in the heirs at law,” should be interpreted to mean, “then * * * shall go to and vest in the then heirs at law.”

In the Estate of Wilson, supra, 184 Cal. 63, 193 P. 581, the will provided: “All the real property * * * I give and devise unto my said son, to have and to hold the same for and during the term of his life; * * * it being my intention to devise unto him a life estate * * * with remainder over at his death, to his then living children; and if he leave no issue, then upon his death, all such real property shall be distributed among my heirs, as provided by the laws of the state of California, the same as if I had died intestate.” She had only one son. He died without living issue. His sole heir was his widow, who claimed all of the Wilson estate on the theory that her husband, the son of Mrs. Wilson, had succeeded to it under his mother's will. Other claimants were various nieces and nephews who survived the son. The court said, at page 67 of 184 Cal., at page 582 of 193 P.: “Statutory rules of interpretation are to be followed in so far as they aid in determining the intention of the testator, but they are all subject to the fundamental rule that the intention as shown by the will must prevail.” The court held that the son's widow was not entitled to the distribution, and said on page 71 of 184 Cal., on page 584 of 193 P.: “* * * we think it clear that the intention was that they [the heirs] should be determined as of the date of the termination of the life estate.”

In the Estate of Hartson (1933) 218 Cal. 536, 538, 24 P.2d 171, 172, the decree of distribution, made in conformance with the provisions of the will, provided that the income from a trust should be paid monthly in certain proportions to the children and a granddaughter of testatrix, and provided further that upon the death of any one of his children then the amount which should have been paid to said deceased child “shall be paid by the said trustees to the legal heirs of her said deceased child.” (Italics added.) One of the children died leaving his wife and a daughter. The income which would have been paid to the deceased child was then paid to his wife and his daughter. Later the widow of the deceased child died leaving two sisters as her heirs. The two sisters claimed that they were entitled to the income formerly paid to the widow, upon the theory that upon the death of the deceased child of the testatrix his interest vested under the will in his “legal heirs,” which included his widow, and since the two sisters were her heirs they should receive the income. The daughter claimed the income on the theory that she was the sole surviving heir of her father, and the interest of her father (the deceased child) did not vest in his heirs upon his death but was contingent upon his heirs being alive at the time the monthly dividends were to be made. The court held that the widow's heirs were not entitled to the income, that the daughter of the deceased child was so entitled, and said at page 540 of 218 Cal., at page 173 of 24 P.2d: “* * * we must interpret the will to mean that the income is to be paid to the heirs of a deceased child living at the time of the distribution of the income. This conclusion is strengthened by the fact that under this interpretation the income is paid to those who are of the blood of the testatrix, and will not go to strangers.” (Italics added.) The court said further, on page 541 of 218 Cal., on page 173 of 24 P.2d: “To hold that the interest of the heirs of Burnell [the deceased child] vested upon his death, as contended for by appellants, would be to do violence to the obvious intent of the testatrix * * *.” (Italics added.)

As above stated, in some jurisdictions the rule, when the decree was signed, was that words as to survivorship under similar circumstances, involving an intervening life estate, referred to the time of the testator's death only when there was no other time to which such words could refer.

In Horner's Probate Practice and Estates (1940) Vol. 3, page 445, sec. 2118, it was said, in referring to “Jarman on Wills”: “Jarman says of the recent cases that the rule referring the words [as to survivorship] to the testator's death applies only where there is no other period to which the words can be referred; and that where such gift is preceded by a life estate or other prior interest, it takes effect in favor of those who survive the period of distribution, and those only. The Illinois [Supreme] Court quotes this rule from Jarman as reasonable * * *.”

In Burlet v. Burlet (1910) 246 Ill. 563, at page 566, 92 N.E. 965, 966, it was said: “The decisions in regard to determining when, in cases such as this, the survivorship is referred to the time of the death of the testator, and when to the death of the person to whom has been given an intervening interest, are not in entire harmony. The rule now prevailing, and which we follow, is that, where a gift to survivors is preceded by a life or other prior interest it takes effect in favor of those who survive the period of distribution, and those only, unless a special contrary intent is found in the will. This is the rule now generally accepted, and which we have followed and approved in Ridgeway v. Underwood, 67 Ill. 419 * * * [other cases].” The case of Burlet v. Burlet, supra, was cited with approval in Bushman v. Fraser (1926) 322 Ill. 579, at page 585, 153 N.E. 611.

In the case of the Estate of Washburn (1909) 11 Cal.App. 735, at page 741, 106 P. 415, at page 418, it was stated: “The law prefers to consider future estates as vested, but the law also seeks to effectuate the wishes of the testator, and when his desire is clearly expressed, as we think it is here, it should be carried out, regardless of the conventional distinctions made between vested and contingent remainders, for this is the paramount duty of the court. * * * In all cases it is the intention, expressed in the instrument creating the expectant estate, that is to govern, and, therefore, if the language employed shows an intention to postpone the vesting until the happening of a certain event it is contingent.” (Italics added.)

The will in the Estate of Newman, supra, 68 Cal.App. 420, 422, 229 P. 898, 899, upon which appellant relies, stated that the trust should terminate upon the death of the survivor of his brother and 5 sisters; who were named as beneficiaries of the income of the trust, and the trustee, “shall * * * transfer to my heirs at law, wherever and whoever they may be, according to the laws of succession of the state of California, all of said trust estate.” The will in that matter was executed one month prior to the testator's death. At the time of making the will he was 51 years of age and in excellent health. (He was killed accidentally.) The court said, at page 425 of 68 Cal.App., at page 900 of 229 P.: “Charles Newman was in the prime of a vigorous manhood when he made his will, and was not expecting an early and sudden passing. * * * The phrase used was a rational one, such as might be used by a person who had before him the reasonable expectancy of life that testator had when he made his will. The language of the will, it seems to us, indicates that testator * * * wished to keep the corpus of the property intact, and insure the payment of the income to the beneficiaries (naturally the objects of his bounty) during their lives; and that, while he may have wished to postpone the distribution of the corpus of his estate, ‘beyond that,’ as respondent concedes, he was not really concerned, and ‘did not care who received the remainder, except that he wanted his legal heirs to receive the same.’ ” (Italics added.)

Of course, in the present case there is no basis for a statement that the testator did not care who received his estate. On the contrary, it is certain that the testator herein was concerned particularly as to the distribution after the death of his wife.

In the Estate of Newman, supra, the period designated for the duration of the trust had not elapsed, the trustee had not been appointed, and the question was whether the estate of the testator who had died one month after he made the will should be held in trust until all of the 6 beneficiaries who were to receive the income had died, presumably many years, and then distribute it to various unknown heirs or whether it should be concluded that the interests of the 6 income–beneficiaries vested when the testator died, inasmuch as the testator did not care particularly who received his estate after the death of the 6 beneficiaries.

In the present case the period designated for the duration of the trust had elapsed, after a period of approximately 18 years; the widow, whose life determined the period of the trust, had received the income ($300 each month for approximately 18 years) which she agreed to accept in lieu of community property; and it was a question whether the estate which had been held in trust for the period designated should be distributed to the persons who were the heirs of the testator at the termination of the life estate, not including the heirs of the daughter–in–law and the heirs of the widow, who were strangers; or to include them on the theory that the testator intended to vest interests in them at the time of his death.

It is to be noted that it was said in the Estate of Newman, supra, 68 Cal.App. at page 425, 229 P. at page 900, that, “Another reason assigned [as a reason for the rule the law favors the vesting of interests] is the bias of the courts in favor of heirs or next of kin, as against third persons.” It therefore appears that the application in the present case of the rule that the law favors the vesting of interests would not favor the next of kin, in accordance with the reason for the rule as stated in the Estate of Newman, supra, but on the contrary would be in favor of strangers. “It is also well settled that, where the provisions of a will are capable of two interpretations, under one of which those of the blood of the testator will take, while under the other the property will go to strangers, the interpretation by which the property goes to those of the blood of the testator is preferred.” Estate of Hartson, supra, 218 Cal. 536, 539, 24 P.2d 171, 173.

The trust which was to continue during the life of the widow of the testator, was created by the testator principally for the support of the widow during her lifetime. When the testator provided in his will that the property should be conveyed “to my heirs” after the death of the widow, whose life measured the duration of the trust, it is apparent that the words “my heirs” were not meant to include the widow or her heirs, or to vest in her a remainder at the time of the testator's death, and suspend the “enjoyment” of that remainder until after she had died. It is apparent also that the words “my heirs” were not intended to include the heirs of the widow of Ephraim.

The 1923 decree included practically the same words as were in the will and in addition thereto included, by way of interpretation, ordinary words of futurity. It would seem that the decree itself justified the order of the trial court. If the decree itself was not sufficiently clear to justify the order of the trial court, then far less was it sufficiently clear, in view of the case law when the decree was made (or the case law now), to include the appellants as distributees; therefore, under such circumstances, the decree would be vague and uncertain, and it would be proper to refer to the will to ascertain the intention of the testator. Such reference to the will under the circumstances would not violate the rule as to finality of judgments (the decree would be recognized as final, but vague), or violate the rule that the law favors the vesting of interests unless a contrary intention appears; and would give effect to the paramount rule that the obvious intention of the testator should prevail.

On Petition for Rehearing.

The respondents' petition for a rehearing is denied.

SHAW, Justice pro tem.

SHINN, Acting P. J., concurs.