Thomason's Estate, In re

• Decision Date: 21 October 1966
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Elizabeth THOMASON, Deceased. STATE of California, Appellant, v. Clyde V. THOMASON and American Cancer Society, etc., Respondents. Civ. 8312. Division 2, California

Page 229

54 Cal.Rptr. 229

245 Cal.App.2d 793

In the Matter of the ESTATE of Elizabeth THOMASON, Deceased.

STATE of California, Appellant, v. Clyde V. THOMASON and American Cancer Society, etc., Respondents.

Civ. 8312.

District Court of Appeal, Fourth District,

Division 2, California.

Oct. 21, 1966.

Hearing Denied Dec. 27, 1966.

[245 Cal.App.2d 795] Thomas C. Lynch, Atty. Gen., Carl Boronkay, Deputy Atty. Gen., and Lawrence R. Tapper, Deputy Atty. Gen., for appellant.

Elliott & Aune, Santa Ana, for respondent, Clyde B. Thomason.

Peart, Baraty & Hassard and Joseph S. Rogers, San Francisco, for respondent, American Cancer Society, California Division.

OPINION

KERRIGAN, Justice.

The evidence discloses that in early 1964 Elizabeth Thomason was suffering from terminal cancer, and on January 29, 1964, she made and executed a holographic will which, subsequent to her demise on July 4, 1964, was admitted to probate on July 31, 1964.

The decedent was survived by her sole heir and spouse, Clyde V. Thomason, whom she had married on December 21, 1927. During the course of the marriage, both husband and wife had been gainfully employed and had managed to accumulate a sizeable community estate by combining their respective salaries. At the time of the wife's demise, the surviving husband was 66 years of age and had been retired from service with the railroad on a monthly pension in the sum of $192.20. The husband had suffered from a drinking problem for many years prior to the demise of the testatrix and had been hospitalized from time-to-time because of this affliction. The decedent made reference to his illness in the holographic will. The estate of the decedent was appraised in value in the sum of $73,400. The family home, which constituted the decedent's separate property, was devised to the surviving spouse for life, and upon his death the will directed that the residence be sold and the proceeds turned over to cancer research. The testatrix also directed that her husband receive the dividends from certain stocks as long as he lived and upon his demise the proceeds of the sale of such stocks be similarly turned over to cancer research. The will also made provision for numerous specific bequests to friends, together with a substantial bequest for the care of a pet dog, but said gifts are not involved in this appeal.

The executrix filed a petition for a decree determining heirship and interests in the estate. A statement of interest was filed by the Attorney General of the State of California asserting that the bequests for cancer research constituted valid charitable gifts and requested that the court select a suitable organization to receive the bequests, in trust, for cancer research. A statement of interest was filed by the surviving husband alleging he was the sole heir-at-law of decedent and except for the family residence, which was the separate property of the testatrix, the entire estate consisted of community property and, consequently, he was entitled to a life interest in the residence and a percentage of the community property. The surviving spouse also filed a separate action in the Orange County Superior Court wherein he sought a decree quieting title to his half of all community property. The American Cancer Society, California Division, filed a statement of interest in response to the petition of the executrix alleging that it was the organization intended by testatrix to receive the gift described in the will for 'cancer research,' and that it was actively engaged in the distribution of funds to organizations and individuals for cancer research purposes. Other legatees also filed statements of interest, but as indicated previously, their interests are not involved on appeal.

The petition for decree determining heirship and interests in the estate was consolidated for trial with the quiet title action and extrinsic evidence was introduced in both cases. In the quiet title action, the court found the Personal property in the estate to be community property, and the surviving spouse's title to a one-half interest therein was quieted and said interest declared not to be an asset of the estate. A further hearing was held in April 1965 on the heirship petition, and the court indicated that it was seriously considering the selection of the University of California as recipient of the bequests for cancer research and the attorney general was requested to notify the American Cancer Society to such effect. The University of California indicated its willingness and ability to apply the bequests for cancer research, but on July 13, 1965, the court notified the parties that contrary to its initial inclination, it was designating the American Cancer Society, California Division, to receive the bequests for cancer research, and in its findings, the court ordered that said bequests for cancer research be limited to one-third of the net distributable estate.

The court, Inter alia, made the following specific findings and conclusions:

'That by instituting a quiet title action as to one-half of the community property and obtaining a judgment quieting title as to said property * * * (the surviving spouse) elected to take against decedent's Will and thereby renounced any right to take under decedent's Will. ¹

'By virtue of the judgment * * * in favor of * * * decedent's husband, quieting title to one-half interest in all community property assets, such one-half of community property assets are not assets of this estate.

'* * * (T)he provision in decedent's Will 'the property to be sold and turned over to Cancer research' is a valid charitable gift and that no organization is named in the Will to take said bequest.

'* * * (T)he American Cancer Society, California Division, is a California charitable corporation having as one of its purposes the solicitation and distribution of funds for cancer research; that the Court designates said American Cancer Society, California Division, as the proper organization to receive said bequest and said bequest is to be used only for cancer research.

'The Court finds that, pursuant to section 41 of the probate code of the State of California, decedent's Will was executed more than 30 days before her death, but that she left surviving her husband, Clyde V. Thomason, who, under the laws of succession, would otherwise have taken the property devised and bequeathed to cancer research.'

In October 1965 the trial court entered its decree determining heirship and interests in estate, which provided in essence that the charitable bequest be distributed in the following proportions: one-third of the net distributable estate to American Cancer Society, California Division; and the remaining two-thirds of the net distributable estate to the surviving spouse.

An appeal initiated by the attorney general was then timely filed. Appellant contends that where a court is required to appoint a trustee to receive a valid charitable bequest, it is under a duty to exercise that discretion in a manner that will carry out the intent of the testatrix to the fullest extent possible under the law, and that it was an abuse of the trial court's discretion to appoint a non-exempt charitable organization under section 41 of the Probate Code, thus limiting the charitable bequest to one-third of the net distributable estate, when an exempt trustee could also have been appointed under section 42 of the Probate Code to receive the remaining two-thirds of the net distributable estate without any limitation or restriction applicable to the balance of the charitable bequest.

It should be particularly noted that neither the appellant-State nor the respondent-surviving spouse opposes the appointment by the court of the American Cancer Society as donee of the one-third interest. The appeal is directed to the court's order appointing the American Cancer Society to receive the entire charitable bequest inasmuch as such appointment results in a substantial defeasance of the bequest by reason of the limitations contained in section 41, Probate Code.

It is clearly the law of California that a charitable trust will not be declared invalid for failure of a testator to designate a trustee in his last will and testament, and that where no trustee is named, the court will appoint a trustee. (See Fay v. Howe, 136 Cal. 599, 602--603, 69 P. 423; Estate of Gay, 138 Cal. 552, 554, 71 P. 707; Estate of McKenzie, 227 Cal.App.2d 167, 172, 38 Cal.Rptr. 496, 7 A.L.R.3d 1275; Estate of Quinn, 156 Cal.App.2d 684, 688, 320 P.2d 219; Estate of Faulkner, 128 Cal.App.2d 575, 578, 275 P.2d 818.)

Charitable uses are defined as those of religious, educational, political or general social interest to mankind (Lundberg v. County of Alameda, 46 Cal.2d 644, 650, 298 P.2d 1; Estate of Robbins, 57 Cal.2d 718, 722, 21 Cal.Rptr. 797, 371 P.2d 573; Estate of Moore, 190 Cal.App.2d 833, 838, 12 Cal.Rptr. 436; Estate of Weis, 224 Cal.App.2d 19, 22, 36 Cal.Rptr. 266; Estate of McKenzie, supra, 227 Cal.App.2d 167, 169--170, 38 Cal.Rptr. 496, 7 A.L.R.3d 1275; Estate of Henderson, 17 Cal.2d 853, 857, 112 P.2d 605), or as those for the relief of poverty, the advancement of education or religion, or beneficial to the community generally. (Estate of Rollins, 163 Cal.App.2d 225, 229, 328 P.2d 1005.) To create a valid charitable trust, the bequest must limit the use of the fund to charitable purposes. (Estate of Vance, 118 Cal.App. 163, 164, 4 P.2d 977; Estate of Moore, supra, 190 Cal.App.2d at 836, 12 Cal.Rptr. 436; Estate of Sutro, 155 Cal. 727, 734, 102 P. 920.)

In point of fact, none of the parties herein challenges the validity of the charitable gift or the duty of the court to appoint a trustee for the purpose of carrying out the purposes of the trust, and the trial court specifically found that the provision in the testatrix's holographic will, directing that 'the property * * * be sold and turned over to cancer research' constituted a valid ...