Estate of Platt

CARTER, J.

— I concur in the conclusion reached in the majority opinion. However, I believe the case of Estate of Brown, 143 Cal. 450 [ 77 P. 160 ], therein referred to should be overruled because it failed to give proper effect or appli *353 cation to section 1366 of the Civil Code, now section 160 of the Probate Code. The statutory rule in this state, the same as that stated in the Restatement of the Law of Trusts (Rest. Trusts, § 234) is that unless an express intention to the contrary appears in the instrument, the income from a testamentary trust accrues on the testator’s death (Prob. Code, §§ 160, 163). In Estate of Brown, supra, the court expressed the view that if there was no income from the corpus of the trust, it indicated that the testator did not intend to have payments commence at death. I believe it is preferable to state that if there is no income from the corpus during administration then, of course, there could be no payment commencing at death any more than there could be payment of an income by the trustee if there were none. But merely because the corpus is not bearing income at death does not indicate the testator’s intention that the income shall not be payable to the beneficiaries commencing at death. The corpus, if cash, for illustration, may be earning interest during administration and that income should be payable to the beneficiaries.

It is stated in the majority opinion that: “An appellate court is not bound by a construction of the contract based solely upon the terms of the written instrument without the aid of evidence (Brant v. California Dairies, Inc., 4 Cal.2d 128 [ 48 P.2d 13 ] ; Boyer v. United States Fidelity & Guaranty Co., 206 Cal. 273, 279 [ 274 P. 57 ] ; O’Connor v. West Sacramento Co., 189 Cal. 7, 17 [ 207 P. 527 ]; Estate of Thomson, 165 Cal. 290 [ 131 P. 1045 ] ; Mitchel v. Brown, 43 Cal. App.2d 217 [ 110 P.2d 456 ]; Wall v. Equitable Life Assur. Soc. of the United States, 33 Cal.App.2d 112 [ 91 P.2d 145 ] ; Texas Company v. Todd, 19 Cal.App.2d 174 [ 64 P.2d 1180 ]), where there is no conflict in the evidence (Moffatt v. Tight, 44 Cal.App.2d 643 [ 112 P.2d 910 ]), or a determination has been made upon incompetent evidence (Rilovich v. Raymond, 20 Cal.App.2d 630 [ 67 P.2d 1062 ]). Under these circumstances, there is no issue of fact, and it is the duty of an appellate court to make the final determination in accordance with the applicable principles of law.” If that rule is to be accepted, the cases in this state to the contrary should be overruled or harmonized, if possible. There is a conflict of authority which should be recognized and settled. Contrary to the rule stated, it has been held that in the construction *354 of written instruments when resort is had to the instruments alone, the interpretation of the trial court will be accepted by the appellate court, if reasonable, or if that interpretation is one of two reasonable views, it will be followed. (See for illustration the following cases: Adams v. Petroleum Midway Co., Ltd., 205 Cal. 221 [ 270 P. 668 ]; McNeny v. Touchstone, 7 Cal.2d 429 [ 60 P.2d 986 ]; Kautz v. Zurich Gen. A. & L. Ins. Co., 212 Cal. 576, 582 [ 300 P. 34 ]; Manhattan Beach v. Cortelyou, 10 Cal.2d 653, 660 [ 76 P.2d 483 ]; Teater v. Good Hope Dev. Corp., 14 Cal.2d 196, 210 [ 93 P.2d 112 ]; Estate of Northcutt, 16 Cal.2d 683 [ 107 P.2d 607 ].)

While, in my opinion, it is not necessary to invoke the rule in question in the determination of this case, the conflict of authority should be noted if the rule is to be applied.