Estate of McCollum

NOURSE, P. J.

An appeal is taken from a decree determining heirship under section 1080 of the Probate Code. Wilma Sarles McCollum died testate February 22, 1939. The portions of her will pertinent to this inquiry read: ‘1 FIRST: Provided JANE SARLES, my Grandmother by reason of the adoption by her and WILLIAM SARLES, her husband, the latter now deceased, of my Mother, MYRTLE SARLES Mc-COLLUM, now deceased, survives me and lives on to receive on distribution of my estate the property hereby bequeathed and devised to her, I give, devise, and bequeath to the said Jane Sarles all property of every kind and nature whatsoever and wheresoever situate of which I may die possessed.

“SECOND: In the event that the said JANE SARLES predeceases me or does not live on to receive on distribution the property herein bequeathed and devised to her, I direct my Executor hereinafter named to convert so much of my property except as herein otherwise provided as may be necessary to pay my funeral expenses, the expenses of my last illness, all just debts which may be proved against my estate, and all legacies herein bequeathed, into cash as soon as the same can be done without unreasonable sacrifice of any of said property, and out of the proceeds thereof after my funeral expenses, the expenses of my last illness, all just debts which may have been proven against my estate, and the expenses of administration thereon have been paid, I give and bequeath as follows:” (Here follow five specific bequests and the declaration that the testatrix expressly refrains from leaving anything to her father because the entire estate had come to her through inheritance from her grandfather because of an error in the latter's will.) The decedent left no heir other than her father, the appellant herein, and her grandmother to whom the estate was devised.

The question raised on this appeal is correctly stated by respondent as follows: “Is the rule against perpetuities violated by a provision in a will which suspends the vesting

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of title not possibly longer than the period of a life in being at the date of death of the testatrix®”

The pertinent provisions of the statutes controlling read: (Civ. Code, secs. 715, 716)

“Restraints upon alienation.