Appell

Five surviving named beneficiaries of a testamentary trust appeal from an order made in response to a petition for instructions (Prob. Code, § 1120) and which directed the trustee to pay the one-sixth portion of the trust income which would have been payable to a predeceased sixth-named beneficiary, if he were alive, to his surviving father, Alexander Carr. The petitioning trustee, Irving Shafer, did not appeal.

We have concluded that the order was erroneous and that it should be reversed.

The Background

On April 22, 1940, Jacob Shafer executed a will prepared by his attorney, Edward K. Brody. Among other things, the will .set up a testamentary trust in which the appellants herein, Bert Appell, Melvin Appell, Robert Shafer, Carol Shafer Rivin, and Frances Shafer Shaffer, were named income beneficiaries, together with Ronald Carr, since deceased. Jacob Shafer died on August 21, 1942, and his will was thereafter probated.

The portions of the will pertinent to this appeal, involving only the disposition of the trust income, read:

The residue of the testator’s estate was distributed “to Irving Shafer, as Trustee, in trust to hold, manage and distribute according to the terms and…