Estate of Campbell

BARNARD, P. J.

Wesley S. Campbell died on October 4, 1935, leaving a will containing the following clause:

“All the rest, residue, and remainder of my estate, of whatsoever kind and nature and wheresoever situated, I give, devise and bequeath to the four chair officers of San Diego Lodge No. 168 Benevolent and Protective Order of Elks, being the four chair officers in office at the time of distribution of my estate, designated as ‘Exalted Ruler’, ‘Exalted Leading Knight’, ‘Lecturing Knight’ and ‘Loyal Knight’. Such officers shall take the same free of any trust, but it is my expectation that they will employ the same for charitable purposes conformable to the policies of such San Diego Lodge No. 168, and I earnestly request them to make such use thereof. I particularly commend to them my friend May Skinner, if she should survive me, with the purpose that her needs be provided for should her own resources be insufficient. ’ ’

The will was admitted to probate and in due course a final account and petition for distribution, with objections thereto, came on for hearing, it being stipulated that “the four chair officers” of this lodge were elected annually, and that the individuals who occupied those positions at that time were not the same individuals who had occupied them at the date of decedent’s death. The court found that the quoted clause of the will is invalid and void as in contravention of the provisions of sections 715 and 716 of the Civil Code, and that the said Campbell died intestate as to the residue of his estate, and ordered the same distributed to his heirs at law. The four individuals who at that time held the designated positions in this lodge have appealed from the decree of distribution.

The sole question presented is whether this provision of the will is invalid because of a possibility that distribution of the estate might not take place for more than twenty-five years after the death of the testator. If distribution should be thus delayed the provision in question would contravene the rule against perpetuities (see. 9, art. XX, State Const.),

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and also section 716 of the Civil Code, which reads in part: “Every future interest is void in its creation which, by any possibility, may suspend the absolute power of alienation for a longer period than is prescribed in this chapter.” This includes the provision of section 715 of that code that such a power shall not be suspended for more than twenty-five years from the time of the creation of the suspension, which in this case would be the date of the decedent’s death.