TRAYNOR, J., Dissenting. The majority opinion rests entirely on the decree of distribution. It holds that the decree is neither uncertain nor ambiguous and that its provision that the property, upon the termination of the trust, “shall go to and vest in the heirs at law” clearly indicates that the interests of the heirs were to vest at the time of the termination of the trust. The word “vest,” however, has more than one meaning (see 44 Words & Phrases (perm. ed. 1940) 191-194; 2 Simes, Law of Future Interests, § 347, p. 82; Leach, Cases on Future Interests, (2d ed.) 255), and it is not clear that the probate court used the word to mean vest in right rather than vest in possession. It is hardly conceivable that the court would have used such general language had it intended to pass on the question whether the gifts to the heirs vested in right upon the death of the testator or upon the termination of the trust.
There is a presumption in favor of the vesting of testamentary dispositions at death. (Prob. Code, § 28, formerly Civ. Code, § 1341; Estate of Newman, 68 Cal.App. 420, 424 [229 P. 898]; In re De Tries, 17 Cal.App. 184, 190 [119 P. 109]), and “words expressive of future time are to be referred to the vesting in possession if they reasonably can be, [197]rather than to the vesting in right.” (Estate of Newman, supra, at p. 429; see 49 A.L.R. 186, 187; 127 A.L.R. 609, 610.) The decree provides that the property “shall go to” the heirs. These are “clear words of direct devise” at the time of death (Estate of Wallace, 11 Cal.2d 338, 341 [79 P.2d 1094] ; Keating v. Smith, 154 Cal. 186 [97 P. 300]) and their import is not altered by the accompanying word “vest” (In re De Vries, supra, at 191-192; Randall v. Bank of America, 48 Cal.App.2d 249 [119 P.2d 754]) or by the provision that the trustees shall “convey, deliver and pay over” the trust fund. (Estate of Wallace, supra; Estate of Newman, supra; see Restatement, Property, Future Interests, Parts 3 and 4, § 260.)
In the light of the foregoing authorities it is clear that the decree is open to the construction that the court was referring to the vesting in possession of the interests of the heirs. Since it cannot be determined from the decree whether the interests of the heirs vested in right at the death of the testator or upon the termination of the trust, reference must be made to the will to ascertain the meaning of the decree. (Estate of Goldberg, 10 Cal.2d 709 [76 P.2d 508].)
The will provides: “This trust shall terminate upon the death of my said Wife Catherine,” and “Upon the termination of this trust my said Trustee shall convey, deliver and pay over all the corpus of said trust fund then in its possession or under its control unto my heirs at law in accordance with the present statute of succession of the State of California.” Under these provisions the heirs must be determined as of the death of the testator. “It is a general rule of testamentary construction, so universally recognized as to render unnecessary a full citation of the cases which support it, that in the absence of clear and unambiguous indications of a different intention to be derived from the context of the will, read in the light of the surrounding circumstances, the class described as testator’s heirs, or such persons as would take his estate by the rules of law if he had died intestate, to whom a remainder is given by will, is to be ascertained at the death of the testator.” (Estate of Newman, 68 Cal.App. 420, 424 [229 P. 898]; Estate of Wallace, 11 Cal.2d 338 [79 P.2d 1094] ; Keating v. Smith, 154 Cal. 186 [97 P. 300]; Estate of Ritzman, 186 Cal. 567 [199 P. 783]; Estate of De Vries, 17 Cal.App. 184 [119 P. 109] ; Randall v. Bank of America, 48 Cal.App.2d 249 [119 P.2d 754]; Estate of Glann, [198177] Cal. 347 [170 P. 833]; In re Rider’s Estate, 199 Cal. 724 [251 P. 799]; Rest., Property, Future Interests, Parts 3 and 4; §§260, 308; 33 L.R.A.N.S. 2; 13 A.L.R. 615; 49 A.L.R. 178; 127 A.L.R. 604.) Such rules of construction are as essential as rules of construction for deeds or negotiable instruments. Without them counsel could not advise their clients with any reasonable certainty, for the meaning of a will could not be ascertained until it had been passed upon by a court of last resort. (See Brown, Problems of Construction Arising In The Law of Property—Particularly In The Law of Future Interests, 79 Pa.L.Rev. 385, 389.) When a testator resorts to the word “heirs” after having exhausted his specific wishes by the previous limitations, he states in effect that he is content thereafter to let the law take its course. (Whall v. Converse, 146 Mass. 345, 348 [15 N.E. 660]; Gilman v. Congregational Home Missionary Society, 276 Mass. 580 [177 N.E. 621]; Matter of Bump, 234 N.Y. 60 [136 N.E. 295].) Under the law, which favors the creation of vested rather than contingent remainders, the testator’s “heirs at law” are the persons who answer that description at the time of the testator’s death. (Ibid.)
Respondents contend that a different intention can be derived from the context of the will, read in the light of the surrounding circumstances. Particular reliance is placed on the fact that one of the testator’s heirs was his wife, who was given a life interest in the same property. If the person to whom a life interest in the property has been given is the sole heir of the testator, there is some incongruity in also giving such a person all the interest under the limitation to “heirs.” The circumstance of his being the sole heir tends to establish that the testator intended the heirs to be ascertained as of the death of the sole heir. (Rest., Property, Future Interests, Parts 3 and 4, § 308, Comment k, p. 1715; Estate of Wilson, 184 Cal. 63, 64 [193 P. 581].) When, however, the taker of a prior interest is one of several heirs at the testator’s death “no constructional tendency is sufficiently definite to be capable of statement” (Rest., Property, Future Interests,'Parts 3 and 4, Comment k, p. 1717), and there is nothing to warrant the court’s departing from the usual meaning of the word “heirs.” (Estate of Newman, 68 Cal.App. 420 [229 P. 898].) Such a departure would exclude, not simply a particular heir, but all the heirs of a testator who die before [199]the particular heir, and would substitute others in their place. (See Perrier, Gifts to Heirs in California, 26 Cal.L.Rev. 413, 423.)
Respondents invoke the rule set forth in Estate of Hartson, 218 Cal. 536, 540 [24 P.2d 171], that “where the provisions of a will are capable of two interpretations, under one of which those of the blood of the testator will take, while under the other the property will go to strangers, the interpretation by which the property goes to those of the blood of the testator is preferred. ’ ’ A gift to heirs, however, vests the property in those entitled to take under the statute of succession (Prob. Code, § 108, formerly Civ. Code, § 1334), and the provision in the will for the gift of the corpus to the testator’s heirs “in accordance with the present statute of succession” contains no suggestion that the disposition of that corpus is limited to heirs who are “of the blood” of the testator. (See Estate of Watts, 179 Cal. 20, 23 [175 P. 415].) Other provisions of the will invoked by respondents are insufficient in my opinion to warrant a construction different from the usual meaning of the word “heirs.” The provisions that the title to the home for Mrs. Easter should be vested in the trustee, and that the Catalina Court and Sixth Grammercy properties should not be sold during the life of Mrs. Easter, do not purport to qualify the gift over of the remainder interest. Neither do the provisions for the payment of income to Ephraim’s widow during Mrs. Easter’s lifetime, nor the references to the issue of deceased children, nor the references in the spendthrift provisions to income only.
Appellants’ petition for a rehearing was denied May 29, 1944. Traynor, J., voted for a rehearing.