Cronin v. Security-First National Bank

SHINN, J.,

pro tem.

Appeal from a decree of the Superior Court of Los Angeles County, under section 1080 of the Probate Code, determining who is entitled to distribution of estate. Appellants are cousins of the decedent, who died testate leaving no other heirs. By her will, testatrix left her entire estate in trust for certain charitable uses and purposes, with two exceptions, namely, she authorized and directed the trustee to set aside property of the value of $7,500, and out of the net income therefrom to pay to Bea Suderstrom the sum of $300 per annum for and during the remainder of her natural life, and she further provided as follows: “d. From the remainder of the net income from the trust estate, including such net income from the $7,500.00 fund aforesaid as shall exceed $300.00 per year, there shall be paid the expenses of the perpetual care and maintenance of Plot Number 842, in Section 4 of Calvary Cemetery, St. Louis, Missouri, in which are the graves of my father, and mother, Michael and Mary Gallagher, and in which plot I direct that I myself be buried.” Bea Suderstrom having predeceased testatrix, the bequest to her failed.

The provisions of paragraph “d” were held by the court to be invalid, for the reason that the trust therein attempted to be created was in perpetuity and not for charitable purposes. The remaining provisions of the will were upheld and it was decreed that the trustee was entitled to distribution of the entire estate. Appellants’ contention is that the conceded invalidity of the provisions of paragraph “d” extended to and nullified the entire will, and such is the question presented upon this appeal.

Certain familiar rules of interpretation are involved. Where the intention of the testator cannot have full effect, it must have effect as far as possible, and an interpretation is to be preferred which will prevent total intestacy. (Probate Code, secs. 101 and 102.) In

Estate of Van Wyck, 185

Cal. 49, at page 62 [196 Pac. 50], it was said: “The real question

[556]

presented where a will contains both valid and invalid provisions is whether the two are so parts of a single plan or scheme or otherwise so dependent one upon the other that by avoiding the invalid provisions and allowing the valid to stand there will result a disposition of the estate so different from what the testator contemplated or so unreasonable that it must be presumed that the testator would not have made the valid provisions if he had been aware of the invalidity of the others.” We have only to determine whether the trial court correctly decided that the main and controlling testamentary purpose was to create a charitable trust and that the provision for the perpetual care of the burial lot was incidental thereto. Unless the court can say from a construction of the will as a whole that testatrix would not have created the charitable trust had she known that the provision for care of the burial plot could not be given effect, the failure of the latter provision does not invalidate the will.