In the Matter of the Estate of W. H. H. RALSTON, Deceased. WILLIAM JAMES RALSTON, Appellant, v. L. R. KAGARISE, as Executor, etc., Respondent, 1 Cal. 2d 724

WASTE, C. J. This is an appeal from a decree entered in a proceeding to determine heirship. The decedent died testate in Los Angeles County, leaving as his next of kin and heirs at law two grandsons. The pertinent provisions of his will, of which the respondent is the duly appointed and acting executor, read as follows: “I give and bequeath in trust to L. R. Kagarise ...... my entire property at my death, both Real and Personal, wherever this property may be situated, and I hereby give and bequeath to the said L. R.

Kagarise absolute authority to dispose of this my entire estate as he may see fit....... “I appoint the said L. R. Kagarise as my executor and administrator of my estate as he has always been my good friend, and I have absolute confidence in his honesty, and will do as well in disposing of my estate as I could if I were still alive.” The will contained no residuary clause.

Contending that the trust attempted to be created by the decedent is invalid and void for uncertainty and that the decedent’s estate therefore passed to them in equal shares as his next of kin and only heirs at law, the two grandsons commenced this proceeding. On behalf of the petitioner Hamer it was also urged that whether the trust be valid or invalid he is entitled to one-half of the property as a pretermitted heir. The appellant Ralston, being mentioned elsewhere in the will, could not advance this claim.

After hearing, the court below found that the will of decedent “does not create a trust but does by its terms give the entire estate” to the respondent executor. It was also found that the petitioner Hamer upon distribution of the estate is entitled to one-half thereof as a pretermitted heir. A decree was accordingly entered from which the petitioner Ralston, who was refused any participation in the estate, prosecuted this appeal on the judgment roll alone. We agree with the lower court in so far as it found and concluded that the will failed to impress a trust upon the decedent’s property.

It is' essential to the validity of a trust, whether express or precatory, that the language employed definitely indicate an intention to create a trust, that the subject-matter thereof be certain, and that the object or persons intended to have the benefit thereof be certain. The authorities are legion to this effect. The “trust” here involved is defective and invalid because of its complete failure to indicate either the object or the persons to benefit thereby. We cannot, however, accept the further finding and conclusion that the will “by its terms gives the entire estate” to the respondent executor.

The instrument does not purport to vest the property in respondent executor for his own individual use. On the contrary, it declares that the property is left to the respondent “in trust”. In view of this expressed intention the property, because of the invalidity of the trust, passes under the laws of intestate succession and the two grandsons of the decedent, as his next of kin and only heirs at law, are entitled to share equally therein. (Wittfield v.

Foster, 124 Cal. 418, 420 [57 Pac. 219].) 'There is a well-recognized distinction between an uncertainty where the intent to establish a trust is clear- but the provisions are so indefinite as to render the trust void for uncertainty, and the uncertainty which simply indicates the want of intention to create a trust. (Loomis Inst. v. Healy, 98 Conn. 102 [119 Atl. 31].) This distinction is discussed in Pratt v. Trustees of Sheppard & E. P.

Hospital, 88 Md. 610 [42 Atl. 51, 56], wherein the following appears: “But it must be borne in mind that there is a distinction between a trust that is void for uncertainty, and an uncertainty that is simply indicative of the absence of an intention to create a trust! In the one case there is no uncertainty as to the intention to create a trust, but merely an uncertainty as to the objects to be benefited or the subject to be affected; in the othe'r case, there is simply an uncertainty as to whether any trust was intended to be created at all.

If it be uncertain as to whether there was an intention to create a trust, it is obviously not the province of the courts to ingraft a trust upon the gift; but, if it be apparent from the whole will that a trust was intended to be established, then the uncertainty as to the objects or the subject of that trust will not indicate that there was no intention to raise a trust, but the uncertainty will avoid the trust attempted to be founded.

Where the expressions have been held too vague to show an intention to create a trust, the devisee or legatee retains the property for his own use; but where the intention to create a trust is sufficiently expressed, and yet the objects or the subjects of it are uncertain, the gift fails and the heir or next of kin is let in to the beneficial ownership. In Briggs v. Penny, 42 Eng. Reprint, 371, 375, it is declared : "Once establish that a trust was intended, and the legatee cannot take beneficially.

If a testator gives upon trust, though he never adds a syllable to denote the objects of that trust, or though he declares the trust in such a way as not to exhaust the property, or though he declares it imperfectly, or though the trusts are illegal, still in all these cases, as is well known, the legatee is excluded, and the next of kin take.” The case of Maught v. Getzendanner, 65 Md. 527 [5 Atl. 471, 57 Am. Rep. 352], reviews the authorities on the issue here presented. In the instant ease there can be no doubt as to the testator’s intent to create a trust.

As already stated, he expressly declared that he left his “entire property” to the respondent executor “in trust”. His failure to designate with sufficient certainty the objects or purposes of the trust makes the same invalid and unenforceable. However, his intent being clear that the respondent executor was not to acquire a beneficial interest in the property, it passed upon his death, and, in the absence of a residuary clause in the will, to his next of kin and heirs at law, the petitioners in this proceeding, in equal parts under the laws of intestate succession.

The decree is reversed in so far as it precludes the appellant from participating in the estate of the decedent, with directions to the court below to proceed as herein indicated. Curtis, J., Shenb, J., Langdon, J., and Seawell, J., concurred.