Herrington

— This is an opinion after rehearing granted from the opinion filed April 5, 1965.

Edythe Ward Nicely by her will left substantially all of her estate in trust, $250 per month to be paid by the trustee to her daughter, Aubrey Nicely Herrington (also her sole heir at law), for life, the residue upon her death to go to five charities, four of which were nonexempt under Probate Code section 41. That section provides that if more than one-third of a total estate is left to nonexempt charities by a testator leaving heirs of certain classes (including children) the excess falls into intestacy and goes to the specified heirs. The trust declaration here contained a “spendthrift” restriction. It also included a provision giving the trustee power to invade corpus in an emergency affecting the daughter. The probate court reasoned that the possible exercise of that right made it impossible to determine until the daughter’s death whether or not the gifts to nonexempt charities would exceed one-third and therefore held that distribution of the intestate portion of the estate must await that death. Since the daughter is well-to-do exercise of the right to invade corpus is unlikely, although, of…