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66 Cal. 2d 855

Duerden v. Cooney

California Supreme Court

Decided June 16, 1967

California Supreme Court · decided 1967-06-16

Key passage — most relied on by later courts

“inconsistent with Probate Code [former] section 142. That section provides: `A condition precedent in a will is one which is required to be fulfilled before a particular disposition takes effect. It is to be deemed performed when the testator's intention has been substantially, though not literally, complied with. Nothing vests until such condition is fulfilled, except where fulfillment is impossible....' [The Supreme Court explained:] The crucial issue under this section is whether a clause requiring survivorship should be interpreted to mean survivorship to distribution or survivorship to the time distribution should have occurred, or, as an alternative, whether survivorship to the earlier date constitutes substantial compliance with the condition. Under either interpretation we believe that unreasonable delay cannot defeat the beneficiary's interest. This conclusion promotes the established policy favoring prompt distribution of estates [citations] and carries out the presumed intent of the testatrix. In the absence of any indication to the contrary a testator contemplates prompt distribution. [Her] intention is substantially complied with if a beneficiary who is alive at the time distribution could and should have occurred is allowed to take under the will. [Fn. omitted.]”

quoted by 1 later decision, including 77 Cal. App. 4th 352 - Estate of Justesen

Relies on Partridge v. Von Ahnden · Estate of Jameson

Good law ✅— No negative treatment on recordhow we know

Decided 1967-06-16

How this case has been cited

Cited by 21 later decisions — most recently January 2018

20 state decisions

60196719701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

McCOMB, J.

¶1I dissent and would reverse the order insofar as it decreed that Ellen’s interest vested before her death and ordered distribution to the administratrix of her estate.

¶2Where a will provides that the interest of a beneficiary is contingent upon his surviving distribution, survivorship is a condition precedent to vesting and the beneficiary’s interest fails if he dies prior to the making of an order of distribution. (Estate of Jameson, 93 Cal.App.2d 35, 38-40 [1] [208 P.2d 54] [hearing denied by the Supreme Court] ; Estate of Hampe, 85 Cal.App.2d 557, 558 [1] [193 P.2d 133] [hearing denied by the Supreme Court].)

¶3Section 142 of the Probate Code provides: “A condition precedent in a will is one which is required to be fulfilled before particular disposition takes effect. It is to be deemed performed when the testator’s intention has been substantially, though not literally, complied with. Nothing vests until *861such condition is fulfilled, except where fulfillment is impossible. ...” (Italics added.)

¶4In the instant case, fulfillment of the condition was not impossible. Therefore, under the plain language of the statute, vesting had not occurred.

¶5The petition of the petitioners and appellants for a rehearing was denied July 12, 1967, and the opinion was modified to read as printed above.

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