I dissent.
To reach its result, the majority must hold that a man formally adjudged an incompetent in two states is nonetheless ‘‘capable of handling his portion of the trust estate with proper care and judgment. ’ ’ Moreover, it must hold that this is so clear that the contrary conclusion of cotrustee Jackson, in whom the will vests the power of determination, is arbitrary and unreasonable. As an incident, it is also neces*838sary to overlook the provision of the will that termination of the trust shall be made “upon the request of” Jackson, who, far from initiating this procedure, has consistently opposed it and continues to do so. Moreover, insofar as the majority suggests that competency of a guardian of the beneficiary is an adequate substitute for the capability of the beneficiary which the testator desired, it holds that a guardian who is not shown even to have been known to the testator is to be substituted as custodian of this rather substantial estate for the trustees who are named in the will, and in whom the testator presumably had a substantial degree of confidence. To me, that result seems a complete rewriting of the will and a total frustration of the testator’s intent.
A principal, if not the sole, purpose of the trust appears from its terms to have been the imposition of limitations upon distribution of the corpus to the testator’s two children. Whatever may be our view of the wisdom or desirability of such restrictions, the majority does not suggest that they were beyond the power of the testator.
The three texts upon which the majority relies permit deviation from the terms of the trust only when “compliance would defeat or substantially impair the accomplishment of the purposes of the trust,” and only when “necessary to carry out the purposes of the trust” (Rest. 2d Trusts, § 167[1]; and see like statements in 2 Scott on Trusts (2d ed.) 1167, 1176). Bogert distinguishes between “dispositive” and “administrative” provisions, and suggests limitation of the power of deviation to the latter (Bogert, Trusts and Trustees (2d ed.) 128-130). In the present will, there is a notable absence of any emphasis upon, or even declaration of, purposes to be served or standards to be reached by dispositions to the two children. Rather, the emphasis appears to be upon restricting disposition of the corpus. Thus the deviation from terms of the will accepted by the majority effects, in my view, a frustration rather than an accomplishment of the basic purpose of the testator.
Moreover, the present order may well invade the rights of residuary beneficiaries of the trust. The identity of such residuary beneficiaries is not now determinable. Among those presently likely to participate in such ultimate succession are minors. Unborn children may be entitled to portions of the residue. Yet to direct immediate distribution of the substantial portion of corpus here involved ignores the rights of such possible residuary beneficiaries. Protection of their rights is *839essential (Estate of Van Deusen, 30 Cal.2d 285, 292-294 [182 P.2d 565]). Courts have no power to benefit one beneficiary at the expense of others (2 Scott, supra, p. 1176; Bogert, supra, p. 152). The majority opinion appears to me to ignore this rule.
I would reverse the order.
Appellants’ petition for a hearing by the Supreme Court was denied November 21, 1962. Peters, J., was of the opinion that the petition should be granted.
Assigned by Chairman of Judicial Council.