77 P. 475 | Cal. | 1904
Appeal from decree of distribution by which the residue of the estate of deceased was distributed for the benefit and advancement of the Oakland Red Cross Society in California, in preference to appellant, Baron D. Merchant, son and sole heir at law of deceased, as he claims it should have gone.
The eighth item in the will of deceased is made part of the decree, and may be looked to as showing the intention of the testatrix, without violating the rule in Goad v. Montgomery,
The points apparently relied on by appellant are, that the power given the trustee is uncertain, and that it cannot be determined from the will how or in what manner the residue shall be used; that the will makes the executor the trustee, and the society the beneficiary, and that as the society has "at all times a certain ascertained membership," the trust must fail as a charity, for, as it is claimed, the great distinguishing feature of a charitable trust is, that the persons to be benefited must be uncertain and indefinite. It is conceded that if "the testatrix had given directly the residue of her estate to the Oakland Red Cross Society to use it for the benefit and care of sick or disabled soldiers and sailors, the bequest might stand." But it is insisted that the residue is given to trustees to take charge of and use for the benefit of said society; that the society is composed of a definite and ascertained number of persons, and is clearly pointed out by the terms of the gift to receive and control its benefits, and hence is not a public charity. (Citing Old South Society v. Crocker,
Obviously the intention of the testatrix, as shown by the decree, was, that the residue of her estate should be devoted to the objects to carry out which was the sole purpose of creating and maintainng the society, and appellant concedes that those objects are charitable. The intention being charitable, the bequest ought to be upheld if a way can be found to do so without violating sound reason and recognized principles of law. This court said in Estate of Willey,
In effect the will indicated an intention that the residue of the estate should be used for the benefit of the society in carrying out its charitable objects, and to that end also to equip a hospital for the benefit of soldiers who came from the Pacific Coast, and all of the residue might be used for that purpose.
The bequest was not for the benefit of the individuals who happened at the death of the testatrix to constitute the membership of the society, but for the benefit of the society in its organized capacity, and through it for the benefit of the charitable objects to promote which it was formed.
Respondent cites cases to support the proposition that even if the will mean that the society is the beneficiary, still, as it is conceded to be a charitable institution, the bequest necessarily becomes a charitable use; that on principle there is no difference between a bequest to a trustee for the benefit of a designated society, known or shown to be solely charitable, and a bequest to a trustee for the benefit of the persons who are the objects of the charitable ministrations of such society. Where the devise is directly to a society that exists only to dispense charity, it is presumed that the trust will be administered agreeably to the wish of the testator, — i.e. for charitable purposes, — and resort may be had to the courts to compel such application. So also where the devise is to a trustee for the benefit of such a society, the same presumption *542 arises as to the application of the trust fund, and the same power of the court to compel it or to restrain a misuse of the fund exists. In both cases the express wish of the testator is capable of enforcement, and should be enforced. In Seda v. Huble, 75 Iowa, 429,1 the testator provided as follows: "I hereby give, devise, and bequeath to Franz Sevcik and Fred Huble, in trust for the benefit of the Catholic Church on my farm in Tama County, the sum of eight hundred dollars, and hereby direct that they or their successors shall invest said money safely for the benefit of said church, and that service be held in said church for my soul yearly." The bequest was attacked on the ground, among others, that it was void because not for a charitable use. The court held that the "church, or those who worship in the church edifice, are entitled to the benefits of the bequest." The court said, as to the last clause of the item, that the bequest is not based on the condition that services be held for the soul of the testator, nor was such the testator's intention. Said the court: "To our minds the bequest is so clearly expressed, the trust so certainly established, and the beneficiary so clearly indicated, that it is unnecessary to support the foregoing view by a citation of authorities to any greater extent than has been done."
Hauson v. Little Sisters of the Poor,
In Cheatham v. Nashville Trust Co., (Tenn. Ch.) 57 S.W. 202, the devise was in trust "for the use and benefit of the Old Women's Home of Nashville, Tenn." It was shown that the home was an incorporated charitable institution. The court said: "The subject of the trust and its object are not uncertain. We have a definite trustee and a definite beneficiary, . . . and the beneficiary being purely a charitable institution, with its purposes defined by its charter, the devise is to a legal trustee in trust for a legal charitable corporation, to aid it in carrying out its chartered benevolent aims."
The question was fully considered in Russell v. Allen,
It is advised that the decree be affirmed.
Cooper, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the decree is affirmed. McFarland, J., Lorigan, J., Henshaw, J.