187 P. 428 | Cal. | 1920
This is an appeal by the executors of the will of Victor Dol, deceased, and by the residuary legatees of the estate under said will, from an order distributing to the respondent the sum of five thousand dollars given to said respondent by the terms of said will.
The will of the decedent was executed on Februay 14, 1911, and he died on March 13, 1911, less than thirty days thereafter. The contention of the appellants is that the respondent is a charitable or benevolent society or corporation, and consequently that any devise to such a corporation made within thirty days prior to the death of the testator is void under the provisions of section 1313 of the Civil Code. The part of the section in controversy 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; . . . and all dispositions of property made contrary hereto shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law."
The defendant was organized as a corporation in 1862, under the provisions of chapter 8 of the act of April 22, 1850 (Stats. 1850, p. 373), entitled, "An Act Concerning Corporations." Its articles of incorporation contained the statement "that the objects of said society should be mutual assistance to the members thereof in case of sickness." The by-laws declared that the society was "established for the only purpose of mutual assistance in case of sickness." They further provided that all persons of the white race of good health, sound mind, and good morals could be admitted as members of the society; that, in order to become a member of the society, the applicant must pay an admission fee varying from three dollars to twenty dollars, according to age; that all members should pay monthly dues varying from fifty cents to two dollars, according to age, and that failure to pay dues should forfeit the rights of membership. The society established a hospital and employed physicians and the by-laws in effect provided that *162 members should be entitled to admission to the hospital and medical treatment therein on depositing one week's charges in advance, and to visits by the society physician at their homes. Other persons, not members, could be admitted to the hospital on payment of such sum as the directors should exact.
It will be observed that no person is to receive any benefit from the society except members thereof and such others as should be admitted to the hospital upon the payment of an agreed compensation.
[1] We are of the opinion that the society is not a charitable or benevolent society within the meaning of section 1313 The proposition is settled by the decision inBrown v. La Societe Franchise De Bienfaisance Mutuelle of SanFrancisco,
There is another reason which forbids the conclusion that the respondent is a charitable society or corporation, even if its funds come not solely from charges against its members and patrons. [3] One of the essential features of a charitable *164
use is that it shall be for the public benefit, either for the entire public or for some particular class of persons, indefinite in number, who constitute a part of the public. The persons to be benefited must consist of "the general public or some class of the general public indefinite as to names and numbers." (Estate of Coleman,
Appellants contend that the character of the corporation is conclusively determined by the fact that it was organized under chapter 8 of the act of 1850, which, as they claim, provides for the incorporation of charitable associations only. The first section of the chapter (Stats. 1850, 373, sec. 175) provides that it shall be lawful for all "churches, congregations, religious, moral, benevolent, literary or philanthropic associations or societies," to become incorporated under the provisions of the act. [4] We do not think this language justifies the conclusion that all corporations organized under the act are, ipso facto,
charitable or benevolent associations or corporations. Corporations of the character named may be either charitable or not, according to the powers they have under the provisions of their articles and by-laws, and their purposes as therein specified. On that subject the statute is silent. In Stewart v.California etc. Assn.,
There is no force in the argument that neither the articles of incorporation nor the by-laws appear to contemplate the making of profits by the hospital or the payment of dividends to the members. Whether intended to produce profits or not, it is clear that the property was, to be used for the benefit of members only and not for charity. In Brown v. La Societe etc.,supra, on this point the court said: "Nor can the funds contributed by the members be regarded otherwise than as, beneficially, their own property." If the society should at any time dissolve, there could be no doubt that the trustees would hold its funds, property and assets as property belonging to the members individually. This question is fully discussed and so decided in Coe v. Washington Mills, supra, cited in the Brown case in support of the last quoted statement.
Appellants contend that there is some essential difference between the words "charitable" and "benevolent" as used in section 1313 We think there is no justification for any distinction as applied to the present case. (Estate ofHinckley,
The bequest under consideration here does not by its terms create any trust whatever. It reads as follows: "4th. I give and bequeath unto the French Hospital of the City of Los Angeles, the sum of five thousand dollars."
It is admitted that by the term "French Hospital" the testator intended to designate the respondent. [7] The legal effect of the bequest is to make the money the absolute property of the respondent and the language does not impose upon it any trust.
There is a suggestion in the briefs which indicates that there was some question concerning the capacity of the respondent corporation to take a bequest by will. Section 1275 of the Civil Code provides that corporations not formed for hospital purposes or certain other specified purposes cannot take under a will, unless expressly authorized by statute. Section 288 provides that the laws under which corporations existing at the time the code took effect were formed are applicable to all such corporations which do not elect to continue their existence under the code provisions as provided in section 287. As we have seen, the statute under which the respondent corporation was formed authorized it to take gifts of real or personal property. [8] As the corporation has not elected to continue under the code, this provision still remains in force with respect to this corporation. It follows that it has power to accept the gift in controversy, although by section 288 the act of 1850 and its amendments were repealed except as to corporations similarly situated to the respondent.
The order is affirmed.
Lawlor, J., and Olney, J., concurred.
Hearing in Bank denied.
All the Justices concurred. *168