The following is a copy of the will of the testator:

*347 The will devised and bequeathed to the five children of the testator certain property, “subject to the conditions hereinafter mentioned”:

It is to be noted that the will was drawn by a lawyer, and that no express provision is made that the share of Bridget Feeney, in case of her death before distribution, shall go to her heirs.

The omission of the testator to make such provision is a very significant fact, because if he had desired that the heirs of Bridget should take their mother’s share he would have said so in the will. He may have desired to provide for his sister, as she was a widow; but it is scarcely probable he would take away property from his own daughter to give to his nieces and nephews. Such an intent should clearly appear on the face of the will.

Bridget Feeney died in October, 1889, and Thomas died in May, 1890—both events having taken place before the distribution could be had under the will.

The question for solution is whether Bridget Feeney’s heirs take the share that would have gone to Thomas, had he lived; or whether Thomas’ heirs take it; or whether, as to that interest, intestacy occurs.

The court cannot agree with counsel for petitioners, that the will created a trust in Bridget. The devise to Thomas *348 is direct—subject to the “conditions” in the will. The will nowhere, in direct terms, devises the property in trust to Bridget. The only provision in that regard is where it is provided “that in the event of a distribution to him (Thomas) of his share of my estate, I desire that said Bridget shall take and hold the same in'trust for him.” The will says, “I give, bequeath and devise to my said five children” (of whom Thomas was one); and then says in the event of a distribution to him of his share, the testator desires Bridget shall take and hold the same in trust, etc. If the will had devised the interest to Bridget, in trust for the uses and purposes mentioned, then a trust would have been created; but the will does not do so. The will makes a devise to Thomas, and provides for a distribution direct to him of his share.

Positive dispositions in a will are not to be overcome by inference. The “desire” is merely precatory.

It follows, then, that the interest of Thomas (whatever it might be) was one which he could dispose of, and would descend to his heirs.

The whole will must be considered, to get at the intention of the testator. An examination of the whole instrument will show that the devise to Mrs. Feeney was to take effect only in case she survived Thomas. “If my son Thomas should die before the distribution of my estate, I give, bequeath and devise the share to which said Thomas would be entitled to my sister, Bridget Feeney.”

As no man would make a devise to a dead person, her survival of Thomas is necessarily implied. Further on the will provides for her appointment as guardian of Thomas. Can a man appoint a guardian who is dead ? And as to the trust, which it is contended, was created by the will, how could she take in trust, unless alive 1

■ The testator clearly meant that Bridget, to take, should be alive when the contingency on which she was to take arose. The court will supply the words, “if then living,” in the proper place.

“In order to reach the obvious general intent of the testator, implications may supply verbal omissions”: 1 Redfield on Wills, star p. 465, par. 17.

*349 If the devise was to take effect only in case she survived, there was a condition precedent, which, not having been fulfilled, no estate vested: Civ. Code, sec. 1347.

The devise to Mrs. Feeney was a conditional disposition.

“A conditional disposition is one which depends upon the occurrence of some uncertain event, by which it is either to take effect or be defeated”: Civ. Code, sec. 1345.

The first “uncertain event” in the case at bar is the death of Thomas before distribution. It is evident that such an event was uncertain. The second was the “distribution to Thomas of his share of my estate.” Thomas might, or might not, have lived to take distribution; and, hence, this event was uncertain. The will itself shows that, because it says “in-the event of a distribution.”

It will be borne in mind that Mrs. Clancy had an estate in the property until distribution—that is, she was to receive the rents and profits. If Thomas survived, he was to have one-fifth; and, if he died before distribution, the share he would be entitled to goes to Mrs. Feeney.

The leading inquiry upon which the question of vesting or not vesting turns .is whether the gift is immediate, and the time of payment or of enjoyment only postponed; or is future and contingent, depending on the beneficiary arriving at age, or surviving some other person, or the like. If futurity is annexed to the substance of the gift, the vesting is suspended: Everitt v. Everitt, 29 N. Y. 75 .

A legacy is contingent or vested, just as the contingency, if any, is annexed to the gift, or to the payment of it: Majors v. Majors, 32 Gratt. 819 .

The point that determines the vesting is not whether time is annexed to the gift, but whether it is annexed to the substance of the gift as a condition precedent. If the arrival of the time is a condition without which the testator would not have made the bequest, as in the case of marriage or puberty, then in the very nature of things the time is annexed to the substance of the gift: McClure’s Appeal, 72 Pa. 414 .

But where the legacy is not given until a certain future time, it does not vest, and, if the legatee dies before, it is *350 lost: Reed’s Appeal, 118 Pa. 220 , 4 Am. St. Rep. 588 , 11 Atl. 787 .

When the time is annexed to the gift itself, and not' to payment only, as a legacy to a legatee at twenty-one, or “if” or “when” he attains that age, the legacy does not vest. His attaining that age is a condition precedent, and if he dies before attaining that age the legacy never vests: Gifford v. Thorn, 9 N. J. Eq. 702; Clayton v. Somers, 27 N. J. Eq. 230; Snow v. Snow, 49 Me. 159 ; Travis v. Morrison, 28 Ala. 494 .

Now, this will provides, “if my son Thomas should die before distribution” the share to which he would be entitled shall go to Mrs. Feeney.

The death of Thomas was the event which was “annexed to the gift itself,” as without it the testator could not have made the gift to her. And as she died before the time, the gift was lost.

But aside from authority—if we look at the will—how could Mrs. Feeney have an estate that was vested while Thomas was alive? She had only a contingent interest, which would take effect on his death, and, as she died before him, her interest ceased with her death.

Again, if either had a vested interest Thomas was that one. If his interest was vested, then hers was not; because there cannot be two vested interests at the same time in the same property.

Section 695 of the Civil Code says, “a future interest is contingent whilst the person in whom, or the event upon which, it is limited to take effect remains uncertain.”

According to the will, if Thomas died before distribution, Mrs. Feeney was to take. The above-cited section provides that whilst the event on which the future interest is limited remains uncertain the interest is contingent; and hence, whilst Thomas was alive, and Ms death before distribution was uncertain, Mrs. Feeney’s future interest was contingent. As she died before the death of Thomas, her interest, being contingent, died with her.

As stated, Thomas died before distribution was made. His being alive and distribution made to him were conditions precedent to taking under the provisions of the will which provided for that event.

*351 What has been said on the other provisions of the will applies equally to the one under consideration. Testamentary dispositions are presumed to vest at the testator’s decease: Civ. Code, sec. 1341. But this is only a presumption, which may be rebutted or overcome by the will or by law.

Thomas Clancy died intestate, and whatever interest he had went to his sisters, who were his heirs at law.

If Thomas had died before the testator, and Mrs. Feeney had died before Thomas, certainly her heirs could not have come in. If she had lived after Thomas, then section 1344, Civil Code, cited by counsel for petitioners, might have been in point.

In the Goldtree case, 79 Cal. 613 , 22 Pac. 50 , the devise was in trust to pay the income to certain persons named, and on their death the corpus of the estate was to go to certain children when they arrived at majority or married. Of course, the corpus of the estate went to the children, but as none of them died no such question as is here presented arose.

In Re Reinhardt, 74 Cal. 365 , 16 Pac. "13, the supreme court held, affirming the court below (Department Nine, Probate, San Francisco), that the husband took a determinable-life estate under the will, and that, as to the rest of the estate, the decedent died intestate. In that case the children took under the statute of descents and distributions.

Williams v. Williams, 73 Cal. 99 , 14 Pac. 394 , was where a bequest of money was made to vest absolutely, to be paid at a certain time.

In Re Williamson, 75 Cal. 317 , 17 Pac. 221 , the court held that the intention of the testator was to give Robert only one-half, and that as to the other half (the wife’s share) there was intestacy; and it went “to the heirs as the law directs.”

In re Dolan, 79 Cal. 65 , 21 Pac. 545 , holds that under the devise in trust the beneficiary had no life estate or right of possession, but could only enforce the trust.

The conclusion of the court is therefore fourfold: