Moore's Estate, In re
| Decision Date | 05 April 1961 |
| Citation | 190 Cal.App.2d 833,12 Cal.Rptr. 436 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the ESTATE of Mergrette M. MOORE, Deceased. Stanley MOSK, Attorney General of the State of California, Appellant, v. Charles GEISMAN, Geraldine Kite, Margaret G. McKee, Phebe I. Ripple, Ella Horn, Fannie E. Johnson, John Brandenburg, Earl Brandenburg, Ralph Brandenburg and Mrs. Maude Brandenburg Johnson, Respondents. Civ. 6502. |
Stanley Mosk, Atty. Gen., and William J. Power, Deputy Atty. Gen., for appellant.
Fenton B. Hackett, Fresno, Robert D. Hill, Tampa, Fla., and Joseph L. Joy, Fresno, for respondents.
This is an appeal from an order determining heirship.
The pertinent facts necessary for determination of the cause are shown by the record before us as follows: The deceased, Mergrette M. Moore, was, on February 6, 1943, a resident of the State of California. On that date she made a holographic will, valid under the laws of California. By that will she bequeathed all of her property to her sister, Phebe Ripple, for life. The dispute in this case primarily revolves around a single paragraph of the will which reads as follows:
'She is to use this property as long as she lives and then it is to be given to some creditable non profit Science investigation Society, of her choice.'
Sometime after making the will, she removed her residence to the State of Florida, where she died March 16, 1958. She left real and personal property of substantial value in California, as well as other property in Florida. The will in question is the only one found. It was denied probate in Florida because Florida does not recognize the validity of holographic wills. It was admitted to probate in California.
After the will had been admitted to probate, the administrator with the will annexed filed its petition to determine heirship, and answers were filed by Phebe Ripple, a sister, devisee of a life estate, Margaret G. McKee, a niece and heir at law of decedent, and also by Stanley Mosk, Attorney General of the State of California, under his duty to protect public charitable trusts because of the parens patriae position of the State with respect thereto. People ex rel. Ellert v. Goswell, 113 Cal. 129, 136, 45 P. 270, 35 L.R.A 269.
At the trial, no extraneous evidence was offered or received. The trial court ordered: (1) That the will bequeaths a life estate of Phebe Ripple; (2) That it does not create a trust, charitable or otherwise; (3) That the remainder is undisposed of and vests in the heirs of decedent; (5) That the real property and tangible personal property situated in California are subject to disposition under the will; (5) That the intangible personal property is not subject to disposition under the will and is to be distributed through the domiciliary administrator in Florida. The order does not attempt to determine whether or not the life beneficiary might invade the corpus. The Attorney General appeals.
The primary contention of the parties revolves around the question of whether or not the will created a charitable trust. One subsidiary question is raised respecting how much of the property is controlled by the will and what, if any, is controlled by the laws of Florida. Counsel for the parties have filed commendably objective, erudite and exhaustive briefs.
It is the contention of appellant that a charitable trust was created. Most of the California cases relating to charitable trusts have arisen through interpretations of Article XX, section 9, of the California Constitution, which reads as follows:
'No perpetuities shall be allowed except for eleemosynary purposes.'
The original rule guiding our approach is stated in the early case of Estate of Hinckley, 58 Cal. 457, 509, as follows:
California cases, with modified language, have consistently followed this rule, although a gradual but distinctly discernible broadening of vision and greater liberality toward interpretation in favor of charitable intention has occurred. In Estate of Sutro, 155 Cal. 727, 102 P. 920, the narrow interpretation was still applied. However, some broadening can be noticed. It is there recognized, 155 Cal. at page 736, 102 P. at page 923, that:
"A charity, in the legal sense, may be more fully defined as a gift to be applied, consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government.'
Among many cases using an extremely narrow interpretation there are, however, listed as approved charitable purposes 'the advancement of civilization generally' and 'undertaking of general utility'.
In the later case of Estate of Kline, 138 Cal.App. 514, 516-517, 32 P.2d 677, 678, the testator had used the terminology 'paid, used and/or disbursed by my said Trustee to such persons, charitable organizations and/or corporations * * * organized for the purpose of aiding and for the betterment of crippled children, the persons, charities or organizations that shall receive the benefit of this charitable trust to be selected by my said Trustee in its absolute and uncontrolled discretion.' There the court singled out the disjunctive 'and uncontrolled discretion' of the trustee as invalidating the trust on the ground that it might be used for private purposes, stating: 'The sole question here involved is, does the will permit any of the income of said trust to be used for noncharitable purposes?'
Still later, in Estate of Peabody, 21 Cal.App.2d 690, 691, 70 P.2d 249, the rule of the Hinckley case was repeated, in holding the bequest invalid because of the possibility of non-charitable purpose under the clause 'then to go to an institution for old people' Here again, however, further advancement toward liberality is shown in the distinction between invalidity of private trust bequests for lack of certainty and validity of charitable trusts where the power is given to the trustee to nominate the recipient of the charity. Other examples of the narrower interpretation are numerous, but in each it will be noticed that the interpreting court largely bases its decision on some language of the will which clearly authorizes a use in which private individuals or corporations might legitimately line their pockets for private gain.
Recognition of the tendency toward greater liberality of construction in interpretations favorable to the charitable intention of the testator is to be found in many recent cases. In Estate of Tarrant, 38 Cal.2d 42, 46, 237 P.2d 505, 506, 28 A.L.R.2d 419, in holding a valid charitable intent to have been expressed in the bequest to the pension funds of three different railroad corporations, our Supreme Court recognized that the bequest might be of some incidental benefit to the railroad corporations but that a charitable intent was evidenced and should be effectuated. In discussing the rules of interpretation, the court there said:
(Citations.) * * * The scope of the word 'charity' changes and enlarges with the needs of men and must advance with the progress of civilization so as to encompass varying wants of humanity properly coming within its spirit. (Citations.) It is the policy of the law to favor gifts for charitable purposes, and a will providing such gifts will be liberally construed in order to accomplish the intent of the donor. * * *
'The nature of the bequest is not necessarily determined by the status of the organization to which it is made, for 'A charitable gift may be made to a non-charitable institution so long as the purpose of the gift remains charitable.' * * *
'While speculation and conjecture as to the testator's intention may not be followed by the court in order to avoid a conclusion of intestacy (citation), it is well established law in this state that 'a gift will not be permitted to fail because of misnomer, misdescription, or ambiguity of description.''
In Estate of Henderson, 17 Cal.2d 853, at page 857, 112 P.2d 605, at page 607, in applying the restrictions of Probate Code section 41 to a bequest for aged, indigent or infirm members of the Order of the Eastern Star, the court said:
In Estate of Rollins, 163 Cal.App.2d 225, 227, 328 P.2d 1005, 1006, in interpreting the bequest clause: 'The remainder to go to some charitable institution, or research fund, or for a suitable memorial to my mother and father (no statute or monument).', to be for charitable purposes, the court lucidly points out the changes in approach which have occurred in more recent times to eliminate the older antagonistic spirit of approach to charitable bequests. In its general comments the court said...
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