Bottler

This appeal deals with the effect of the residuary clause in the will of a testator who was the donee of a special power of appointment of the remainder of an inter vivos trust. We have concluded that the will operated to exercise the power in part and that the ostensible effect was to create interests which violated the rule against perpetuities (Civ. Code, § 715.2).

The facts material to our determination here have not been in dispute.

On January 3, 1949, Eugene Dysart Bottler (hereinafter Dysart) executed an inter vivos trust which provided that upon his death (which occurred February 8, 1949) his son, Raymond Bottler, was to receive for life the income of the trust estate. On Raymond’s death the trust was to terminate and the trustee was required to distribute the principal and any undistributed income therefrom “. . . to such persons within the restricted class hereinafter referred to, and in such manner and proportions as the said Raymond Bottler shall appoint either (1) by his last will and testament duly admitted to probate in the State of California, or (2) in default of such appointment by will or to the extent to which the same shall not be effective, by the…