Bunnell

The testamentary provisions made by Sallie H. Bunn specified that the residual estate should be “sold and given to a worthy charity selected by my executors.” In a proceeding to establish heirship, it was determined that no valid charitable trust was thereby created and distribution of the property was ordered according to the rights of succession. The appeal by the executor presents for decision only the question as to the validity of the disposition to charity.

Harry Bunn, the husband of the testatrix, lived only about one month after her death and she left no lineal heirs. Her holographic will, with three codicils, was admitted to probate by an order which also appointed Bank of America National Trust and Savings Association executor.

In a proceeding to determine heirship, Mr. Bunn’s administrator and 24 of his wife’s collateral heirs claimed the residue of the estate, which amounts to about $35,000. The decree in their favor distributes one-half of the property to the husband’s administrator and the remainder to the other claimants.

The will included the following: “At Harry’s death, I want everything I have sold and given to a worthy charity, selected by my executors.” The…

I concur in the judgment of reversal solely because I think the findings of fact and conclusions of law do not adequately resolve all material issues.

It should be pointed out, however, that the majority opinion quotes only such excerpts from the documentary evidence as the majority deem support their conclusion. Actually the evidence before the trial court, taken in its entirety, admits of materially conflicting inferences: the testatrix may or may not have intended to create a trust; she may or may not have intended certain bequests to be gifts absolute; she may or may not have intended certain bequests to be not absolute or in trust, but of a life estate with remainder over. An inference to be drawn from an established fact is evidence. (Code Civ. Proc., §§ 1957(1), 1958, 1960.) When established facts admit of opposing or inconsistent inferences the evidence, in that sense, is conflicting and the resolution of the conflicts should be left with the jury or trial judge.

I do not agree with the majority’s disposition of the effect of section 43 of the Probate Code. That section by its express terms is applicable and operative only upon one of two specified contingencies: 1. When…