Duerden

I dissent and would reverse the order insofar as it decreed that Ellen’s interest vested before her death and ordered distribution to the administratrix of her estate.

Where a will provides that the interest of a beneficiary is contingent upon his surviving distribution, survivorship is a condition precedent to vesting and the beneficiary’s interest fails if he dies prior to the making of an order of distribution. (Estate of Jameson, 93 Cal.App.2d 35, 38-40 [1] [ 208 P.2d 54 ] [hearing denied by the Supreme Court] ; Estate of Hampe, 85 Cal.App.2d 557, 558 [1] [ 193 P.2d 133 ] [hearing denied by the Supreme Court].)

Section 142 of the Probate Code provides: “A condition precedent in a will is one which is required to be fulfilled before particular disposition takes effect. It is to be deemed performed when the testator’s intention has been substantially, though not literally, complied with. Nothing vests until *861 such condition is fulfilled, except where fulfillment is impossible. ...” (Italics added.)

In the instant case, fulfillment of the condition was not impossible. Therefore, under the plain language of the statute, vesting had not occurred.

The petition of the…

Eva Barclay Taylor died testate September 14, 1963. Her will provided that one-third of the residue of her estate should go to Ellen Catherine Glasky if she survived distribution of the estate. If she predeceased distribution, her one-third share was to go in equal shares to *857 Harold James Duerden and William Henry Duerden, Jr. 1 The will was admitted to probate on November 26, 1963, and letters testamentary were issued to Harold, the executor of the estate, on December 2,1963. The petition for final distribution was filed March 4, 1965, requesting that one-third of the residue of the estate be distributed to Ellen. Hearing on the petition was set for March 29, 1965. Ellen died March 15, 1965. Harold then filed another petition for final distribution requesting that the one-third share bequeathed to Ellen be distributed to him and William. Objections to the petition were filed by Genevieve C. Cooney, administratrix with the will annexed of Ellen’s estate and a legatee under Ellen’s will, and by Rosemary Lick, also a legatee under Ellen’s will. The court sustained the objections to the petition for final distribution and decreed that Ellen’s interest vested in her before her…