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The Department of Mental Hygiene of the State of California (referred to herein as the department) petitioned the superior court for an order instructing respondent, as trustee of a testamentary trust, to pay to the department from the trust funds specified amounts for the care and support of Louis L. Barnes, an incompetent person, who is a patient in a state hospital. The order upon the petition was adverse to the department. The department appeals from the order.

Under the provisions of the will of Fanny B. Hinckley she gave her property to respondent in trust, for certain purposes, during the life of her brother Louis L. Barnes. Her will was admitted to probate on July 12, 1945. The decree of distribution, distributing the property to respondent as trustee and stating the provisions of the trust, is not in the record on appeal. It will be assumed, however, that the provisions of the trust as stated in the decree of distribution are the same as the provisions of the will with respect to the trust provisions. It will also be assumed that the decree of distribution was made in 1946 and that respondent has been trustee since that time.

Part of her will was as follows:

The will…