Estate of Letts

200 Cal.App.2d 708 (1962) Estate of ARTHUR LETTS, JR., Deceased. DAVID LETTS et al., Petitioners and Appellants,

v.

CLAREMONT COLLEGE, Claimant and Respondent.

Civ. No. 25626. California Court of Appeals. Second Dist., Div. Two.

Feb. 26, 1962. Kenyon F. Lee for Petitioners and Appellants.

O'Melveny & Myers, Pierce Works, Bennett W. Priest and Allyn O. Kreps for Claimant and Respondent.

FOX, P. J.

Petitioners instituted this proceeding to determine their rights in the estate of Arthur Letts, Jr., pursuant to Probate Code section 1080. The trial court having determined that they have no rights whatsoever, they bring this appeal.

On June 15, 1959, Arthur Letts, Jr., executed his will and on June 18 of the same year his codicil thereto. Having made certain specific gifts and having set up a trust, the income of which was to go to his widow, he left the rest of his estate to Claremont College, specifically disinheriting his two adopted children who are the petitioners herein. Less than 30 days later, on July 14, the decedent passed away, leaving his widow and the petitioners as his only heirs at law.

Petitioners base their claim on the mortmain provisions of section 41 of the Probate Code which reads, in part: "No estate, real or personal, may be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, by a testator who leaves a spouse, ... descendant or ancestor surviving him, who, under the will, or the laws of succession, would otherwise have taken the property so bequeathed or devised, unless the will was duly executed at least 30 days before the death of the testator. ... All property bequeathed or devised [710] contrary to the provisions of this section shall go to the spouse, ... descendant or ancestor of the testator, if and to the extent that they would have taken said property as aforesaid but for such devises or legacies; otherwise the testator's estate shall go in accordance with his will and such devises and legacies shall be unaffected."

Respondent, Claremont College, seeks to uphold its claim to the gifts under the will by reference to section 42 of the Probate Code. That section provides that "Bequests and devises to ... any educational institution which is exempt from taxation under section 1a of Article XIII ... of the Constitution of this State and statutes enacted thereunder, or for the use or benefit of any such educational institution, ... are excepted from the restrictions of this article [of which 41 is a part]."