The San Francisco call., 1910-10-05

trust purposes are void, because nei-
ther is authorized by the statute"
Probate Decisions. 800
The argument then seemed to turn
upon those two trust purposes.
The opinion alluded to said further:
1t is admitted that the first trust, for
the life of the widow, is valid, and does
ceeds TO discuss the unity and entirety
of the disputed trusts, saying, among
other things, that the only way IN
which the petitioners could come into
possession of their parts would be
through the transfer from the trustee
to them Ui1on the death of the WIDOW
of testator- The life trust was treated
throu ghout as removed from the range
of argument, and the courts mind ap-
peared TO have been occupied with the
other paragraphs of the will. Pro-
bate Decisions. 353.
BY coincidence the announcement of
the decision and the intelligence of the
death of the widow were almost sImul,
taneous. but sthe official and formal
document was later in PRONUNCIATION
and minuted date and incorporated the
fact. as above recited, of the death OF
the widow.
Thus the record stands, and, techni-
cally, the effect was 10 declare that the
life estate had terminated and the petit
tion of the trustees for partial distri =
button to them was denied as OF that
date.
1t seemed to have been assumed all
around Arc upon the argument that that the the
the court accepted that assumption,
and the trust as to the remainder of
the corpus was assailed and held to be
void. There was no contention in the
argument upon the life trust. 1t was
not put in issue in the pleadings, and
hence can not be considered as a fac
tor in the solution of this problem:
| The question was as to the validity of
the dispositions in trust dependent
upon the death of the widow, and 1t
hot
cifieally dealt with and held void AS
I in the New York case. Messman ". Egg
enberger. 4e App. Div. 46. the testator
undertook to create a trust.
The testator, however, had pro-
vided in his will. as Claus Spreck-
els did. that his wife during her
lifetime should have the. use and
benefit of the income of his es-
tate, and the remainder was cast
into this trust which the court held
void as suspending the power of
in being, and as to property upon
which the testator had abortively
sought to make that trust operate
erty went the way of the law of in
testate succession; and 1t was
sought to apply the doctrine of ad-
New York court held that the doc
trine could not be applied, because
there was no total tntestacy, that
the life interest of the wife in the
corpus of this fund was material
and substantial disposition by will
and rescued the testamentary doc
ument from the allegation that it
stood for total intestacy.
That this construction may defeat
| the intention Of the testator is the re-
suit of his endeavor to create an es-
tate which was forbidden by the law
as declared for many decades by our
courts. and, as was said in the New
! York case just cited. decided in 1899
| II is the construction given to the
statute by the courts in England. from
which our statutes came. and we should
not be justified at this date in chang
ing what has become rule of prop
/ erty.
1t may be that, by the application OF
this rule, testator's intent may be frus-
/ trated in one case and in another &C
complished, yet it must be applied by
/ the court, even though 1t work both
ways, according to circumstances.
We have had in the case at bar
much technical discussion as to the
meaning of the words and phrases de
! cedent" ''intestate." IAN intestate,
''the intestate," and whether or not the
substitution of one term or phrase for
another alters the substance, and coun-
| sci for executors argues that the
| change Of the word ''intestateH in the