WHITE, J.* I dissent.
As recognized in the majority opinion the determinative issue to be resolved by us is whether prior to the cutoff date of December 31, 1961, that portion of the estate subject to the vesting order of 1950 became “payable or deliverable to or . . . vested in possession” in the Attorney General of the United States.
There can be no doubt that in 1950 when, pursuant to the Trading With the Enemy Act (50 U.S.C. App. § 1 et seq.), the Attorney General of the United States, as successor to the Alien Property Custodian, executed Vesting Order No. 16217. there were thereby vested in him for the benefit of the United States the interests of the six legatees with which we are here concerned. But the word “vest” has more than one meaning and may mean “vest in right or interest” or “vest in possession. ’ ’
[138]It has long been settled law in California that money or property of- an estate is not payable nor deliverable to, nor does it vest in possession in, the heirs or legatees until an order of preliminary or final distribution has been made; that before the heir can enter upon the enjoyment and possession of his vested right he must await the completion of administration and the determination of his heirship by the decree of distribution. It is at that time the court must determine the person to whom distribution is to be made and the portions or parts to which each is entitled. (Trippet v. State, 149 Cal. 521, 529 [86 P. 1084, 8 L.R.A. N.S. 1210]; Estate of Buckhantz, 159 Cal.App.2d 635 [324 P.2d 317].)
This court should be reluctant to whittle away, relax or set aside this salutary, long-standing and settled law.
The majority opinion relies on certain findings made by the probate court in its order of October 27, 1960, as indicating that the estate was then for all intents and purposes in a condition to be closed. However, in its finding (5), relied upon by the majority, the court specifically found that the estate was in a condition to be closed, “except for a determination of the rights, if any, of the legatees named in the Will of said decedent whose interests have been affected by said vesting order issued by the Attorney General of the United States. . . .” (Italics added.) Since the probate court has not made any decree of distribution determining whether any or all of the German beneficiaries are entitled to take under the will or the extent to which they are entitled to take, it necessarily follows that until such decree of distribution is made it cannot be said that the legacy or property is payable to, distributable to or vested in the possession of anyone. When such an order of distribution ultimately is made it will admittedly be after December 31, 1961, the last date on which the Attorney General of the United States would have been entitled to payment or delivery or on which the interest now engaging our attention would have vested in his possession.
As was said in Estate of Easter, 24 Cal.2d 191, 194 [148 P.2d 601] : “It is settled, however, as conceded by the appellants, that the effect of a will is controlled by the decree of distribution when final. The decree is said to be 'conclusive as an ascertainment and adjudication ... of the rights of all parties claiming any legal or equitable interest under the will. [ Citations. ] The decree supersedes the will and prevails “over any provisions therein which may be thought inconsistent with the decree.” [Citations.] ’ ”
[139]It is also noteworthy that it was on October 27, 1960, treating the accounting as a current rather than a final account, that the court made its aforesaid order of distribution of five twenty-fourths of the estate not involved in the vesting order but withheld distribution of the nineteen twenty-fourths of the estate here involved. It must be assumed, since the Attorney General of the United States filed the vesting order on December 6, 1950, that he availed himself of the provisions of section 1202 of our Probate Code (request for special notice) and thereafter received the notices provided for in Probate Code section 1200. Assuming that the Attorney General received such notices, he was aware of the aforesaid order of the court of October 27, 1960. Yet he neither at the time said order was made nor during the nearly three years that ensued, when on September 4, 1963, the court made and entered the order here appealed from, made any objection to or petitioned the probate court to modify or change said order nor did the Attorney General proceed under Probate Code sections 1000-1003. He complained only after the court’s order made on September 4, 1963, nearly two years after the divestment statute (Public Law 87-846) became effective on December 31, 1961. Indeed, the majority opinion concedes that during the three-year period just referred to, the Attorney General “had the power to institute proceedings for distribution of the share of the estate included in.the vesting order (Prob. Code, §§ 1000-1003).” (Ante, p. 136.) Under the law, the possession and control of the administrator as against the heirs (in this case the Attorney General of the United States who claimed under them) during the administration is not lost because the purposes of administration have been accomplished and the estate is ready for distribution or because closing of the administration of the estate is unduly delayed (Berry v. Eyraud, 134 Cal. 82, 83 [66 P. 74]) and, since the Attorney General did not avail himself of his power to institute proceedings for distribution of the share of the estate included in the vesting order (Prob. Code, §§ 1000-1003) it follows that until entry of the decree of distribution the property here involved was neither " payable, ” “ deliverable to, ” nor “ vested in possession” of any of the six heirs nor of the Attorney General who claimed under th.em, prior to December 31, 1961, the effective date of the divesting statute.
The majority opinion refers to the legislative history of Public Law 87-846 which in its initial form as introduced in the Congress would have divested assets due but not yet [140]collected by the Attorney General. Thereafter, the Department of Justice speaking through the Attorney General requested that the language of the bill be amended to make the fact of receipt, or right to receive, the determinative date. Although it did not discuss the issue now before us, as I view the suggestion contained in the letter of the Attorney General it would seem to be persuasive in favor of the order here under review when recognition is given to the well established distinction between “vesting in interest” and “vesting in possession. ’ ’
The majority opinion cites and relies upon two cases decided by the Supreme Court of the United States entitled United States v. Jones (1915) 236 U.S. 106 [35 S.Ct. 261, 59 L.Ed. 488], and Simpson v. United States (1920) 252 U.S. 547 [40 S.Ct. 367, 64 L.Ed. 109]. To me, these cases are not determinative of the problem with which we are confronted because we are not here concerned with a case wherein the Attorney General sought to avail himself of the provisions of Probate Code sections 1000-1003 by instituting proceedings, as the majority opinion concedes he had the right to do, for distribution of the shares of the estate included in the vesting order during the existence of such order, but with a situation wherein the Attorney General seeks to set aside an order divesting the United States of its interest in the estate made, as heretofore pointed out, a year after the Congress enacted Public Law 87-846 and approximately two years after the cutoff date fixed by the just-mentioned statute.
I would affirm the order.
McComb, J., concurred.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.