Leonard

Victoria A. McKenzie executed her will on May 5,1933. She died October 26, 1935. The will contains some relatively small legacies to relatives and friends, but the part which gives rise to this appeal is the residuary clause. This clause provides that the residue be placed in a testamentary trust, the income to be paid to the testatrix’ nephew, Albert L. Chauvet, during his life, and after his death, to his wife, Della May Chauvet, if then living, for her life. Upon the death of both, “this trust shall terminate and all property therein or thereof shall belong to and go to my heirs at law, as the same shall be determined at the time of my death under the laws of the State of California.” The will provides for invasion of the corpus of the trust fund at the discretion of the trustee, “In the event of misfortune, need or necessity on the part of my said nephew Albert L. Chauvet, or any member of his immediate family, including the said Della May Chauvet, his wife.”

At her death, testatrix was a widow. She left neither children nor issue. A brother and three sisters had predeceased her.

At the time of testatrix’ death, Albert L. Chauvet was 71 and his wife, Della, was 51. At no…