58 Cal. 2d 522 | Cal. | 1962
This is an appeal from a judgment dismissing a petition to determine heirship, approving and settling accounts of the executor, ordering payment of fees, and decreeing distribution of the estate to certain charitable beneficiaries named in decedent’s will. We have concluded that the trial court correctly determined that by reason of a substitutional dispositive clause of the will contestant-appellant may not avoid the charitable gifts, and that on the specified ground the judgment should be affirmed insofar as relevant to that controlling issue.
From the record it appears that decedent executed his will on January 24, 1957, and died eight days later, on February 1, 1957. By the terms of the will the entire estate was bequeathed to certain charitable institutions. The will further provides as follows: “In the event that any bequest or devise
At the time the will was executed Charles F. Buddy was the Roman Catholic Bishop of the Diocese of San Diego, and it is undisputed that the “Thomas” Ackerman named in the will was intended to refer to Richard Ackerman, Auxiliary Bishop of San Diego.
The will was offered for probate in February 1957, and before expiration of that month decedent’s sole survivor and heir, his brother Harvey Syster,
Mr. Syster died in June 1957 and his widow, as administratrix of his estate, carries on his attack against the dispositive provisions of the will. Following various proceedings (see Estate of Sanderson (1959) 171 Cal.App.2d 651 [341 P.2d
We have concluded that it is unnecessary to determine whether the trial court erred in dismissing the petition to determine heirship. This is true because in the circumstances of this case the ultimate result must be the same regardless of whether the dismissal order be affirmed or reversed, However, to preclude implication of support for erroneous inferences, it is appropriate to point out that the trial court in making the order of dismissal appears to have had the view that under our decision in Estate of Bunn (1949) 33 Cal.2d 897, 900-901 [3] [206 P.2d 635], Mrs. Syster was not a person entitled to carry on the contest or assert that the dis-positive provisions of the will violated Probate Code section 41. In this the trial court was mistaken. It was not Mrs. Syster as an individual claiming in her own right who was objecting to distribution under the will; it was Mrs. Syster solely in her capacity as qualified personal representative of Harvey Syster, surviving (and subsequently deceased) brother of Elmer L. Sanderson (Syster), who was carrying on Harvey’s claim to the property interest which he had asserted during his lifetime.
In the case at bench, however, the first step in the proceeding to establish the personal claim of the heir was taken by him when he filed objections to probate specifically asserting that he was “the brother and sole heir at law of said decedent . . . [that] the purported dispositions in said document [the will] are within the purview of Probate Code section 41 . . . [and that he] Harvey Syster, brother of the said decedent, requests that said provisions [of the will] be declared invalid.” Thus the heir himself made the election and asserted the claim. This he was entitled to do. We are of the view that Harvey’s claim of heirship to the property of Elmer’s estate, as thus evidenced and asserted is of the nature of a property right (Estate of Baker (1915) 170 Cal. 578, 585-588 [150 P. 989]; see also Estate of Field (1951) 38 Cal.2d 151, 154-155 [2] [238 P.2d 578]) and is not cut off by his subsequent death.
Under the terms of section 41 a relative of the enumerated class may avoid a charitable legacy or devise only if and to the extent he would have taken the property but for such legacy or devise; where there is an otherwise effective disposition in the will of the portion of the estate represented by the charitable gifts, the claims of the relative are ineffectual. (See fn. 2, ante; Estate of Haines (1946) 76 Cal.App.2d 673, 675-679 [1, 2] [173 P.2d 693] ; Estate of Davis (1946) 74 Cal.App.2d 357, 360-362 [2] [168 P.2d 789].)
In order to avoid the substitutional clause of the subject will, appellant contends that the gift thereby made is a mere subterfuge and that the bishops named therein would hold the gift upon a secret trust. Bishop Buddy, called as a witness, testified that as a man of good conscience he would feel obligated to carry out the testator’s wishes although not legally compelled to do so nor obligated to do so as a priest. The trial court found that the bishops did not agree orally or otherwise prior to the death of decedent to dispose of or hold the gift in accordance with any direction or request of decedent and that no secret trust of any sort was created.
As appears hereinabove, although the testator specifically declined to impose any legally enforceable obligation upon the bishops to use the gift for charitable purposes, he did request in his will that they so use it.
The law has long been settled that no precatory trust is created where the testator intended to create a moral obligation upon the legatee to carry out the testator’s wishes, but expressed the intent that the obligation not be legally enforceable and “deliberately left the matter of its performance exclusively to the good faith of the legatee.” (Estate of Hamilton (1919) 181 Cal. 758, 769 [7] [186 P. 587] and cases there cited; see also Estate of Duncan (1956) 145 Cal.App.2d 612, 614-615 [2-3] [302 P.2d 892].) Pursuant to this rule, it appears that no precatory trust was created by the
Por the reasons above stated, the above specified portions of the judgment appealed from are affirmed.
Gibson, C. J., Traynor, J., MeComb, J., Peters, J., White, J., and Tobriner, J., concurred.
Appellant’s petition for a rehearing was denied November 7, 1962.
Decedent Elmer L. Sanderson, it appears, had changed his family name from Syster to Sanderson.
Probate Code section 41 provides in relevant part: “No estate, real or personal, may be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, by a testator who leaves a spouse, brother, sister, nephew, niece, descendant or ancestor surviving him, who, under the will, or the laws of succession, would otherwise have taken the property so bequeathed or devised, unless the will was duly executed at least 30 days before the death of the testator. . . . All property bequeathed or devised contrary to the provisions of this section shall go to the spouse, brother, sister, nephew, niece, descendant or ancestor of the testator, if and to the extent that they would have taken said property as aforesaid but for such devises or legacies; otherwise the testator’s estate shall go in accordance with his will and such devises and legacies shall be unaffected.
“Nothing herein contained is intended to, or shall be deemed or construed to vest any property devised or bequeathed to charity or in trust for a charitable use, in any person who is not a relative of the testator belonging to one of the classes mentioned herein, or in any such relative, unless and then only to the extent that such relative takes the same under a substitutional or residuary bequest or devise in the will or under the laws of succession because of the absence of other effective disposition in the will,”
The petition to determine heirship carefully alleges the ground of objection to the dispositive provisions of the will asserted by Harvey Syster, i.e., ‘ ‘ that said estate is not in a condition to be closed by reason of a pending appeal in said estate, and by reason of the pending determination of the objections of Harvey Syster, deceased, by and through Balbena B. Syster, the administratrix of the Estate of Harvey Syster, under the provisions of Section 41 of the Probate Code of the State of California.”