Estate of Holtermann, In re

• Decision Date: 03 August 1962
• Citation: 206 Cal.App.2d 460,23 Cal.Rptr. 685
• Court: California Court of Appeals Court of Appeals
• Parties: In re ESTATE of Joseph Frank HOLTERMANN, Deceased. Rita Marie NEWMAN, Appellant, v. ROMAN CATHOLIC BISHOP, etc., et al., Respondents. Civ. 112.

Page 685

23 Cal.Rptr. 685

206 Cal.App.2d 460

In re ESTATE of Joseph Frank HOLTERMANN, Deceased.

Rita Marie NEWMAN, Appellant, v. ROMAN CATHOLIC BISHOP, etc., et al., Respondents.

Civ. 112.

District Court of Appeal, Fifth District, California.

Aug. 3, 1962.

Rehearing Denied Aug. 29, 1962.

Baker, Palmer, Wall & Raymond, Oran W. Palmer, Bakersfield, for appellant.

Andrews & Andrews, James F. Thaxter, Fresno, for respondent Roman Catholic Bishop.

Gordon A. Drescher, Wasco, for respondent Knights of Columbus.

BROWN, Justice.

Appellant is the sole surviving daughter of decedent, who died at the age of 72 years on October 23, 1959. The decedent executed a will on February 19, 1959, which was more than six months prior to his death, in which he left to the pastor of St. John's Roman Catholic Church at Wasco, $25 for masses for his soul, $50 for masses for the decedent and his family, $25 for masses for the Henry Holtermann, Sr. family, $25 for masses for another family, and $25 for masses for all poor souls. He left all of his furniture and household goods to appellant, and one-half of the residue to The Roman Catholic Bishop of Monterey-Fresno, a corporation sole, and the other half of the residue to the St. John's Council No. 2938 Knights of Columbus in Wasco, an unincorporated association.

After the petition for probate was filed on November 20, 1959, the appellant filed a contest to the will alleging that the decedent did not sign the instrument in the presence of the witnesses; that he did not acknowledge to said witnesses that the signature was his or that it was his last will and testament; that on the date the will was made the decedent was not competent to make a will, was of unsound mind and was not of disposing mind and memory; that said will was executed as a result of undue influence by members of the Knights of Columbus; that decedent was 72 years of age and was suffering from leukemia, was enfeebled in body and mind, was easily influenced, and the Knights of Columbus members dominated his mind.

The Roman Catholic Bishop of Monterey-Fresno, as well as the Knights of Columbus and the pastor of St. John's Roman Catholic Church in Wasco, recipients under the will, and the executor of the estate each filed answers to the contest denying all the allegations in the contest.

On March 25, 1960, appellant dismissed her will contest without prejudice and the will was admitted to probate on March 30, 1960.

Appelland filed a demand for a share of the estate and notice of non-waiver, in which she stated that she, as the daughter and only heir left surviving the decedent, is entitled to all the property left by decedent according to the laws of succession and that she does not waive any right that she has to inherit any property left by decedent, and demanded that the executor distribute all that part of the residue in excess of one-third thereof as provided for in section 41 of the Probate Code.

After due administration of the estate, the executor filed his first and final account and petition for distribution in which he set forth that appellant had filed a contest to the will; that said will contest was dismissed with the appellant and executor agreeing that the assets of the estate were to be distributed substantially as follows: To appellant, the furniture and household effects valued at $150; $150 to the pastor for the masses; two-thirds of the estate to appellant; one-sixth to The Roman Catholic Bishop of Monterey-Fresno; and one-sixth to the Knights of Columbus. The account further set up all of the receipts and disbursements which left a balance for distribution of $4,303.31, of the total inventory of $5,122.32.

Both The Roman Catholic Bishop and the Knights of Columbus filed objections to the petition for distribution on the grounds that appellant had violated paragraph 11 of the decedent's will which reads as follows:

'I have intentionally omitted making provision for all of my heirs who are not specifically mentioned herein, and I hereby generally and specifically disinherit each, any and all persons whomsoever claiming to be or who may lawfully be determined to be my heirs at law except such as are mentioned in this Will, and if any such persons, or such heirs, or any devisees, or legatees, shall contest in any court any of the provisions of this instrument, or who shall not defend or assist in good faith in the defense of any and all of such contests, then each and all of such persons shall not be entitled to any devises, legacies or benefits under this will or any codicil hereto, and any and all devises, and legacies shall be paid, distributed and pass as though such person had died without issue of his or her body before my death or before becoming entitled to receive any portion of my estate.'

Objectors had several alternative proposals based upon what the decision of the court would be on that problem.

After a hearing, the court found that appellant had filed a contest to the will and that by so doing she had violated the provisions of paragraph 11 of said will and forfeited all devises, legacies and benefits under said will; that there were no other persons in a position to avoid any gifts to a charitable or benevolent society in violation of Probate Code, section 41; that the Knights of Columbus is not a charitable or benevolent society; and found, as well as ordered, the distribution of the estate as follows: Payment of the bequests for masses; one-half of the residue to The Roman Catholic Bishop; and the other one-half of the residue to the Knights of Columbus.

The appellant made a motion for a new trial, which was denied, and she filed her appeal from the order settling the first and final account and decree of distribution.

Qualifications of Unincorporated Association to Take Under Will

An unincorporated association is qualified to take under a will whether the purpose is for charity or otherwise.

The court, on a hearing as to whether or not the Knights of Columbus was a charitable unincorporated association, found that the lodge was not engaged in charitable activities, on testimony that it was organized for insurance purposes and social activities; that it did not engage in any activity benefiting the community as a whole; that it never gave financial assistance, food or medicine to its members; that it did not engage in any educational activities; and it did not claim to be a charitable organization. The court quite properly found that the gift was not for charitable or benevolent purposes.

Appellant conceds in her opening brief that the gift to the Knights of Columbus under the will was not for charitable purposes and that the lodge is not a charitable organization and the gift is therefore void under section 27 of the Probate Code. However, in her closing brief she apparently takes the opposite and new position which we cannot consider. (Estate of Sayegh, 118 Cal.App.2d 327, 257 P.2d 995; Grayson v. Grayson, 132 Cal.App.2d 471, 282 P.2d 565.)

Prior to the 1961 amendment, Probate Code, section 27 read as follows:

'A testamentary disposition may be made to the United States, to any instrumentality of the United States, to any of the United States, to any foreign state complying with the provisions of Chapter 3 (commencing at Section 259) of Division 2 of this code, to the State, to counties, to municipal corporations, to natural persons capable by law of taking the property to unincorporated religious, benevolent or fraternal societies or associations or lodges or branches thereof, and to corporations formed for religious, scientific, literary, or solely educational or hospital or sanatorium purposes, or primarily for the public preseruation of forests and natural scenery, or to maintain public libraries, museums or art galleries, or for similar public purposes. No other corporation can take under a will, unless expressly authorized by statute.' (As amended Stats. 1957, c. 1785, p. 3177, § 1.) (Italics added.)

In 1961 the Legislature amended the section by deleting those words shown in italics above, and appellant thus claims that by striking out those words it indicates and implies that all unincorporated associations (until 1961) must be formed for religious, scientific, literary or educational purposes. The actions of the 1961 Legislature cannot indicate the intent of earlier sessions of the Legislature.

Prior to the condification of the Probate Code in 1931, section 27 was formerly Civil Code section 1275. This section made no provision for testamentary disposition to unincorporated religious, benevolent or fraternal societies, associations or lodges, though there were some minor amendments prior to 1931 concerning scientific, literary or educational corporations. Upon condification of the Probate Code, section 27 was recast into its present basic form with the principal changes adding provision for disposition to unincorporated religious, benevolent and fraternal societies or associations or lodges or branches thereof and certain provisions authorizing disposition to corporations formed for religious or scientific, literary, etc. or for similar public purposes.

However, appellant fails to note Corporations Code section 21200 (1947) originally adopted in 1911 (Chapter 572), which permits unincorporated societies, associations, lodges, etc. to 'purchase, receive, own, * * * real estate and other property as may be necessary for the business purposes and objects of the said society or association or lodge * * * subject to the laws and regulations of said society * * * and also to take and receive by will or deed all property not so necessary, and to hold the same until disposed of within a period of ten years from the acquisition thereof * * *.'

All of the cases which have been cited by appellant in her brief have been limited to gifts to associations for charitable purposes. (Estate of Clippinger, 75 Cal.App.2d 426, 171 P.2d 567, a home maintained by...