Hamilton

I concur in the views expressed by Justice Carter. It further appears to me that the death of the beneficiary, Mrs. Hamilton, provides no ground for avoidance of payment to her estate of the sums which she was entitled to receive while she was living. (See Board of Soc. Welfare v. County of Los Angeles (1945), 27 Cal.2d 81, 86, 88-89 [ 162 P.2d 630 ].) I, too, would affirm the judgment.

Separate appeals have been taken by the trustees and the contingent remaindermen of a testamentary trust from an adverse decision in a proceeding brought by the guardian of the beneficiary, an incompetent person, under section 1120 of the Probate Code. The proceeding was brought to compel the trustees to exercise the discretion vested in them to invade the corpus of the trust estate to provide for the “care, needs and comforts” of the beneficiary.

John C. Ferrall died testate on October 5, 1940. Surviving were his son, George D. Ferrall, his daughter, Mrs. Faye F. Hamilton, the beneficiary of the trust here involved, and three grandsons, the children of George. The will was duly admitted to probate in Los Angeles County and a decree of distribution entered on February 5, 1943. The decree became final.

The will and the decree of distribution contained the following provisions :

At the time of the execution of the will and prior thereto Mrs. Hamilton was afflicted with an incurable disease known as multiple sclerosis. Her condition was known to the testator. After his death her condition became worse and in January, 1942, she was placed in a sanitarium. Thereafter she was…

I dissent.

The more persuasive authority holds that where words such as those here used are involved, the amount required to be paid to the beneficiary of the trust is computed without consideration of his other sources of income and certainly not the resources of the husband of the beneficiary here. It is said: “It is a question of interpretation whether the beneficiary is entitled to support out of the trust fund even though he has other resources. Where the trustee is directed to pay to the beneficiary or to apply for him so much as is necessary for his maintenance or support, the inference is that the settlor intended that he should receive his support from the trust estate, even though he might have other resources.” (Scott on Trusts, § 128.4 ; emphasis added.) There being such an inference, the probate court could and did draw it and hence there is sufficient evidence to support its order.

It is not to be supposed that a testator would intend that a beneficiary generally, or intended here that her husband Should lead a useless, idle life thus producing no independent income. That, however, is precisely the result if consideration must be given to independent resources. The…