Jones

Pursuant to the will of Alfred Easter, certain property was distributed by the probate court in trust during the life of his wife. On the wife’s death the trustee filed a final account and petitioned for instructions and for distribution. From portions of the resulting decree these appeals were taken, which are presented on a joint bill of exceptions.

The will, executed March 30, 1920, provided that the trustee should pay to the testator’s wife, Catherine, $300 a month during the term of her natural life, and the balance of the net income was to be divided among his children by a former marriage as follows: one-third to his son, Ephraim, and two-thirds in equal shares to his three daughters, Kate B. Gherky, Elizabeth R. Marriott, and Martha B. Todd. The share of any child who might die was to be paid to his or her issue per stirpes, and if the son left a wife, but no issue, she was to be paid one-half of his share and the remainder was to be divided among the daughters. There was a spendthrift provision as to such income, and a provision that the trustee should allow the wife Catherine to live on certain property, or should provide another home for her rent-free. The trust was…

Dissenting. The majority opinion rests entirely on the decree of distribution. It holds that the decree is neither uncertain nor ambiguous and that its provision that the property, upon the termination of the trust, “shall go to and vest in the heirs at law” clearly indicates that the interests of the heirs were to vest at the time of the termination of the trust. The word “vest,” however, has more than one meaning (see 44 Words & Phrases (perm. ed. 1940) 191-194; 2 Simes, Law of Future Interests, § 347, p. 82; Leach, Cases on Future Interests, (2d ed.) 255), and it is not clear that the probate court used the word to mean vest in right rather than vest in possession. It is hardly conceivable that the court would have used such general language had it intended to pass on the question whether the gifts to the heirs vested in right upon the death of the testator or upon the termination of the trust.

There is a presumption in favor of the vesting of testamentary dispositions at death. (Prob. Code, § 28, formerly Civ. Code, § 1341; Estate of Newman, 68 Cal.App. 420, 424 [ 229 P. 898 ]; In re De Tries, 17 Cal.App. 184, 190 [ 119 P. 109 ]), and “words expressive of future time are to…