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and relationship by marriage is not contemplated within the meaning of the section.

Nor is this situation altered or in any way affected by section 1334 of the same code. Appellant presents the argument in this connection that the term “relation" as used in section 1310 is broad enough to include the meaning given to it under section 1334, which, he contends, includes any person who would succeed to the estate of a testator had he died intestate.

The latter section does not apply to the situation under consideration, as pointed out by respondent, the section is but a general rule dealing with the subject of the interpretation of wills, providing, as it does, that testamentary dispositions to the class of persons enumerated therein, when the words used are words of donation and not of limitation, vests the property in the heirs at law of a deceased according to the provisions of the code relating to succession. The manifest object of this section is to give a definite meaning to the different words employed in the statute, which have received various constructions in the different jurisdictions when unaided by statute. As suggested by counsel for respondents, if the testator had made a devise to "my relations" instead of to “my wife," then resort might be had to the section to determine the meaning of the term. The use of the term in the will here under construction did not therefore create a substituted devise. (Farnsworth v. Whitney, 102 Me. 296 [66 Atl. 831]; Curley v. Lynch, 206 Mass. 289 [92 N. E. 429].)

[3] Nor does the will, as claimed, show any intent on the part of the testator to make a substitution to others in the event that his wife predeceased him. Of course if such an intent appeared it would control, and, if legal, be given full effect. (Estate of Goetz, 13 Cal. App. 292 (109 Pac. 492]; Estate of Murphy, 157 Cal. 63 (137 Am. St. Rep. 110, 106 Pac. 230]; Smith v. Secor, 157 N. Y. 402 [52 N. E. 179].) Here there is absolutely nothing in the will that can possibly justify the claim that such intention does appear. The instrument is silent upon the possibility of the wife predeceasing the testator. If he had contemplated a substitutional gift over he should have made such intention clearly appear. (Estate of Sutro, 139 Cal. 87 [72 Pac.

It must, therefore, be held that the will was made in view of existing conditions at the time of its execution. Here Sowash gave his estate to his wife, and the fact that he made no provision in the event that she predeceased him shows that he did not anticipate this contingency. What his intent may or may not have been after this condition was changed by the death of his wife we have no means of knowing, except from the fact that he allowed the will to stand as originally executed. We are limited in our powers to an interpretation of the will as we find it. The rule of construction that the intent of the testator must be carried out if possible does not authorize courts to make a new will to conform to what they may think the testator intended. The intent of the testator must be ascertained from the will as it stands (Estate of Hittel, 141 Cal. 436 (75 Pac. 53]).

Upon this question, therefore, we conclude that there was no substitution, and that the wife, having predeceased the husband, and she not being a relation of his within the meaning of section 1310 of the Civil Code, the testamentary disposition as to her lapsed and failed.

Nor do we think that the devise to the wife was in any manner impressed with a precatory trust.

In this connection it is contended by appellants that by reason of the requests contained in the will a trust was created, under which the wife, had she survived the testator, would have taken all of the property devised to her (less what might be expended for her comfort and support during her lifetime) in trust for the persons to whom the will requests her to devise it, and that such trust was not terminated by her death prior to that of the testator.

Respondents advance two arguments against this contention. They claim, first, that the chief essential of a precatory trust does not exist, as the words employed in the will are recommendatory in nature and import no trust or charge, and cannot therefore be construed as imperative.

Second, that the subject or res of the supposed trust being merely the property devised “other than so much as shall have been expended for herself during her lifetime for her comfort, maintenance and support," is too uncertain and indefinite to be made the basis of an enforceable trust.

[4] Upon the question as to what words are sufficient to create precatory trusts the decisions of our own state are controlling. As is said in the Estate of Browne, 175 Cal. 361 [165 Pac. 960], whatever may be the rule elsewhere, it is here settled that precatory words are not to be regarded as creating a trust unless it appear that the testator intended to impose an imperative obligation and to exclude the exercise of discretion on the part of the person to whom the recommendatory words are addressed, citing Estate of Purcell, 167 Cal. 176 [138 Pac. 704] ; Estate of Mitchell, 160 Cal. 618 [117 Pac. 774]; Estate of Marti, 132 Cal. 666 [61 Pac. 964, 64 Pac. 1071] ; Kauffman v. Gries, 141 Cal. 295 [74 Pac. 846). In the determination of this question our supreme court in Estate of Hamilton, 181 Cal. 758 [186 Pac. 587), has declared that the construction to be placed upon one instrument is of little value as a precedent in aid of the construction of another. And this is particularly true of cases involving the existence or nonexistence of a precatory trust, for previous decisions only serve to illustrate the application of general rules of construction of wills, which, after all, is a matter of impression as to the maker's intention made upon the mind of a court considering the will itself with the circumstances surrounding its execution. Each case must of necessity, therefore, depend more or less upon its own peculiar facts. While in the case last cited the court deemed certain words used in connection with the will under consideration as being sufficient to create a precatory trust, there is nothing contained in the decision which conflicts in any manner with the doctrine expressed in the Marti case, supra, which establishes the rules of interpretation to be observed in the construction of language used in this connection, and these rules have not been departed from in subsequent cases. It is there pointed

. out that precatory words may or may not create a trust according to the circumstances of the particular case. They are not to be regarded as creating a trust unless it appears that the testator intended to impose an imperative obligation, and to exclude the exercise of discretion or option in reference to the act in question. [5] The expression of the desire of the testator for the disposition of his estate is one to be considered as imperative when addressed to

his executor, but a mere independent expression of desire addressed to the legatee or devisee is not to be construed as a limitation upon an estate or interest expressly vested in the legatee in absolute terms. A clear and distinct devise or bequest cannot be affected by any other words not equally clear and distinct or by inference from other parts of the will. Accordingly, the ordinary use of the word “desire" does not import a trust or charge as addressed to a legatee or devisee. An expression of “desire” that the one to whom a present bequest is made shall make a testamentary disposition falls short of a command or direction, and is in the nature of a mere expression of the testator's feeling, and a suggestion or recommendation or reason to be considered by the legatee or devisee in ng a testamentary disposition. (See, also, Estate of Mitchell, 160 Cal. 618 (117 Pac. 774]; Estate of Purcell, 167 Cal. 176 (138 Pac. 704].)

[6] Unless, therefore, the case compels a different construction, a mere recommendation or request is not sufficient to create a precatory trust.

Nor can it be here said that the reason given for the devise to the wife in any manner changes the situation, for, as above stated, a clear and distinct devise is not affected by recommendations or by any other words not equally clear and distinct. (Estate of Grannis, 142 Cal. 1 (75 Pac. 324); Civ. Code, sec. 1322.)

[7] The property being community property in its character and the testamentary disposition to the wife having lapsed and failed by reason of the fact that she pre. deceased her husband, the estate vested in him without administration, and upon his death his heirs were entitled to have distribution made to them in conformity with subsection 1 of section 1386 of the Civil Code. The trial court rightfully so concluded.

As above suggested, whatever the testator's intention may have been as to the disposition of his estate in the event that his wife predeceased him we have no means of knowing. He had an opportunity of meeting the changed condition by making a new will. This he did not see fit to do, and we cannot make one for him (Estate of Hill, 141 Cal. 436 (75 Pac. 53); Estate of Fair, 132 Cal. 523 [84 Am. St. Rep.

70, 60 Pac. 442, 64 Pac, 1000); Estate of Walkerley, 108 Cal. 656 [49 Am. St. Rep. 97, 41 Pac. 772]).

This conclusion renders a discussion of the question of the uncertainty and indefiniteness of the trust unnecessary.

For the reasons given the judgment is affirmed.

St. Sure, J., and Richards, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 13, 1923.

[Crim. No. 974. Second Appellate District, Division One.—June 15,


THE PEOPLE, Respondent, v. HARRY Y. COHEN, Ap



COMPLAINING WITNESS NOT WIFE. – An information charging a violation of the juvenile court law is not defective because it fails

to state that the complaining witness is not the wife of defendant. [2] ID.- DELINQUENCY OF COMPLAINING WITNESS-SCOPE OF ACT.-An

information charging a violation of the juvenile court law which alleges that at a designated time and place a certain person "was then and there . . . a female person under the age of 21 years, towit, of the age of 16 years . . . and was then and there in danger of leading an idle, dissolute and immoral life” by reason of the acts in such information alleged, sufficiently shows that said female

is within the provisions of subdivision 11 of section 1 of said law. [3] ID.—COMPLAINING WITNESS AS DELINQUENT PERSON-SUFFICIENCY

OF INFORMATION.—The words “delinquent” or “delinquent person" are not found in sections 1 or 21 of the juvenile court law of 1915, and an information charging a violation of that law is not defective because it fails to state that the female therein men

tioned was a delinquent person within the purview of that law. [4] ID.VIOLATION OF LAW-AGE-PROOF.—Under the juvenile court

law as amended in 1921, it is not necessary to prove that the complaining witness is such a person as is enumerated in any of the subdivisions 1 to 13 of section 1 of said law, it being sufficient to show that she is under the age of twenty-one years.

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