14 P.2d 91 | Cal. Ct. App. | 1932
Appellant, the next of kin of the deceased, appeals from the decree of final distribution in the above-entitled estate.
By said decree the estate was distributed in accordance with the provisions of the will and codicils of the deceased. In the trial court appellant objected to such distribution on the ground that a provision of the second codicil, which was executed within thirty days of the death of the testator, was invalid under section 1313 of the Civil Code (now section 41 of the Probate Code). The provision of the codicil claimed to be invalid reads as follows:
"In addition to the bequest and devise of one-fourth of the rest and residue of my estate in paragraph `Twelfth' of my said will and testament made to the person who at my death shall be the pastor in charge of St. Patrick's Roman Catholic Church at San Jose, California, I give, devise and bequeath unto such person, one-half of the rest and residue of my estate of every kind and character and wheresoever situated to be used by such person to procure masses to be said for the repose of my soul."
[1] Under this provision the specified portion of the residue of the estate, amounting in value to about $5,000, was distributed to Rev. Richard Collins, who was the pastor of the designated church at the time of the death of the deceased, "to procure masses to be celebrated for the repose of the soul of the decedent". *719
The question presented on this appeal requires a consideration of the nature of a bequest to a pastor for the purpose of masses for the repose of the soul of the testator. On this general subject the authorities are far from harmonious. As pointed out in the Estate of Lennon,
Such bequests, however, have been looked upon with favor and upheld in most jurisdictions, but not always upon the same grounds. In some jurisdictions bequests to pastors for the purpose of masses have been treated as valid gifts to the pastors and not as trusts. (Sherman v. Baker,
Before discussing the authorities in this jurisdiction, we should further analyze the precise question before us. Section 1313 of the Civil Code, so far as it may have any application to the present case, reads as follows: "No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator." In the present case we find no bequest to "any charitable or benevolent society or corporation". We are dealing with a bequest to a person and unless such bequest was "in trust for charitable uses" the above-mentioned section has no application. Appellant contends that such bequest is one "in trust for charitable uses", while respondent contends that there is no trust and *721 at any rate that there is no trust for a charitable use. In our opinion appellant's contention cannot be sustained.
Our attention has been called to but two cases in this jurisdiction dealing with this question of bequests for masses. In Estate of Lennon,
We do not believe that the evidence before us on this subject is the same as the evidence considered by the court in Estate ofHamilton, supra. The Supreme Court there discussed the opinion in Estate of Lennon, supra, and said that the question of whether the bequest for masses is a bequest for a charitable use is "purely a question of fact, a *722 question as to the purposes and results of the mass according to the doctrine of the church, and if in the present case the evidence of the fact is different and requires a different conclusion, effect must be given to it". But it is unnecessary for us to discuss the evidence in the present case relating to the primary object, character, purposes and results of the masses said for the repose of the soul of a particular person. Here we are concerned with a bequest to a pastor for the purpose of such masses and even if the evidence in this case relating to such masses led to the conclusion on that subject reached by the court in Estate of Hamilton, supra, still there is no trust, for while such pastor "will receive the money upon the obligation to offer masses as required, such obligation does not go to the use or disposition of the money".
[2] A bequest to an individual does not come within the meaning of section 1313 of the Civil Code unless it is a bequest both "in trust" and "for charitable uses". This is clearly indicated in Estate of Hamilton, supra, at page 772, where the court said: "Section 1313 of the Civil Code provides no limitation upon gifts in general for charitable purposes. It places such limitation only upon gifts to charitable corporations or societies or in trust for charitable uses. The bequests in this case to the pastors do not come in either of these classes."
In the present case the bequest was to the pastor with no direction as to the place or places in which or the person or persons by whom the masses should be read. The pastor was himself a Catholic priest who was capable of celebrating the masses and he could celebrate all of the masses himself or he could, if he saw fit, obtain the co-operation of other priests for that purpose. There is nothing to show that the testator intended to impose any obligation on the pastor other than the obligation to see that the masses were said and he was not required to go beyond his own efforts to fulfill this obligation. In other words, the obligation did not "go to the use and disposition of the money" and there was no trust (Estate of Hamilton, supra;Sherman v. Baker, supra; Harrison v. Brophy, supra; In reZimmerman's Will, supra; In re Howard's Estate, supra.)
The decree of final distribution is affirmed.
Sturtevant, J., and Nourse, P.J., concurred. *723
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 11, 1932, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 10, 1932.