Kabisius v. Brooke

NOTJRSE, P. J.

Catherine DeMars died leaving an holographic will in which the residuary clause read, “Any amount left go to the poor soldiers Letterman Hospital. ’ ’ After a full hearing the probate court found that the testatrix intended the residue to go in trust for the poor soldiers of the Letterman General Hospital, in San Francisco, and ordered distribution thereof to the commanding officer of the hospital, as trustee. The heirs at law appeal from this portion of the decree, and the single question involved is whether this bequest created a valid charitable trust.

We start with the finding of the probate court that the bequest was intended for the Letterman General Hospital, an institution maintained by the federal government in San Francisco for the treatment and benefit of soldiers, and that many of these were poor and unable to provide, themselves with the necessities of life. It is in evidence that the testatrix had been a member of a relief organization actively engaged in aiding these soldiers. We next have the concession of appellants that, if a valid charitable trust has been created by the will, it will not fail because no trustee was named in the will.

The validity of the bequest as a charitable trust is attacked upon the grounds that the will did not declare in certain language that a trust was intended, that the beneficiaries are unnamed, and that the duties of the trustees are indefinite. The question of the intention of the testatrix is a mixed question of law and fact which the probate court determined

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adversely to appellants. Viewing the evidence and the surrounding circumstances, we must hold that the intention of the testatrix to create a trust is clear. The rule applicable is found in Restatement of the Law of Trusts, section 397f, which reads: “If the owner of property devises or bequeaths it for charitable purposes and not only does not name a trustee but also does not use language indicating that the property is to be held upon trust, nevertheless a charitable trust will be created. In such a case the court will appoint a trustee to administer the trust. The executor of the will will be permitted to act as trustee if the testator manifested an intention that he should so act. Thus, if a testator directs that a certain sum shall be used to aid needy students, or to assist the poor, or to promote religion, a charitable trust is created. It is not essential to the validity of the charitable trust that the charitable purpose should be specifically designated. Thus, if a testator bequeaths a certain sum ‘to charity’ a charitable trust is created. ’ ’