I concur in the judgment of reversal solely because I think the findings of fact and conclusions of law do not adequately resolve all material issues.
It should be pointed out, however, that the majority opinion quotes only such excerpts from the documentary evidence as the majority deem support their conclusion. Actually the evidence before the trial court, taken in its entirety, admits of materially conflicting inferences: the testatrix may or may not have intended to create a trust; she may or may not have intended certain bequests to be gifts absolute; she may or may not have intended certain bequests to be not absolute or in trust, but of a life estate with remainder over. An inference to be drawn from an established fact is evidence. (Code Civ. Proc., §§ 1957(1), 1958, 1960.) When established facts admit of opposing or inconsistent inferences the evidence, in that sense, is conflicting and the resolution of the conflicts should be left with the jury or trial judge.
I do not agree with the majority’s disposition of the effect of section 43 of the Probate Code. That section by its express terms is applicable and operative only upon one of two specified contingencies: 1. When the testator “leaves no spouse, child, grandchild or parent”; or, 2. “ [W]hen all of such heirs, by a writing executed at least six months prior to . . . [the testator’s] death, shall have waived the restriction.” Neither contingency is shown to exist here; the testatrix left her spouse surviving and there is no suggestion that he had at least six months prior to” the testatrix’s death (or at any other time) “by a writing . . . waived the restriction.” Since section 43 js not operative section 41 is operative.