Estate of Pfund

California Court of Appeal Aug 22, 1949 No. Civ. No. 7617Published

Before: Peek

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Holding. A bequest for the perpetual care of a private cemetery lot is a private, non-charitable trust that violates the constitutional prohibition against perpetuities.

Issues

Whether a bequest for the perpetual care of a cemetery lot constitutes a charitable trust.
Whether a fraternal organization may receive a bequest for perpetual care under the Health and Safety Code.
Whether the bequest violates the constitutional prohibition against perpetuities.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is readily apparent that the bequest to the appellant fraternal order specifically providing for "perpetual care and upkeep" of the testator's cemetery lot must be held to be void since "no perpetuities shall be allowed ..."”

“it was held that an attempted bequest, the income of which was to be used for the perpetual care of decedent's grave, did not establish a charitable use and was void as creating a perpetuity in violation of said constitutional provision.”

93 Cal.App.2d 444 (1949) Estate of WILLIAM HENRY PFUND, Deceased. CAPITAL LODGE NO. 87 OF THE INDEPENDENT ORDER OF ODD FELLOWS, Appellant,

EDWINA VIRGINIA PFUND et al., as Executors, etc., Respondents.

Civ. No. 7617. California Court of Appeals. Third Dist.

Aug. 22, 1949. Busick & Busick for Appellant.

White & Harber and Lawrence A. Schei for Respondents.

PEEK, J.

This is an appeal upon the judgment roll alone from that portion of the decree of distribution declaring void a bequest of $1,000 upon the grounds that the legatee was not a cemetery authority within the meaning of chapter 4, articles 2 and 4, division 8, part 3 of the Health and Safety Code; that the trust attempted to be created was not a charitable use and is void in that it purports to create a perpetuity in violation of section 9, article XX of the Constitution of this state. [445]

The particular provision of the will provided as follows:

"To Capital Lodge No. 87 of the Independent Order of Odd Fellows, Sacramento, California, I give and bequeath the sum of One Thousand Dollars ($1,000.00), but in trust, nevertheless, for the following uses and purposes:"

To supply and erect a headstone or marker for myself and wife (if she chooses to be buried beside me) on my cemetery lot in the City Cemetery of Sacramento City, said marker to be similar to and uniform with the four markers already in place and which cost Seventy Five Dollars (75.00) a piece, and to be of Barrie Vermont Granite which is now handled in Sacramento by Carlaw Bros. The income from the balance of said One Thousand Dollars ($1,000.00) after deducting the expenditure aforesaid shall be used by said Trustee for the perpetual care and upkeep of my said cemetery lot in said cemetery.""

Appellant's contentions are (1) that the evidence is insufficient to sustain the findings, (2) that the trust is authorized by section 8738 of the Health and Safety Code and (3) that as no evidence was introduced to show that said lodge is not a charitable institution or a cemetery association within the meaning of the applicable provisions of said code, the judgment is not supported by the evidence.

Estate of Pfund

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PEEK, J.

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