Hiram Lodge No. 18 v. Cox

RICHARDS, J.

This appeal is from an order or decree of distribution of the estate of Gary Wirt, deceased, who died on or about November 6, 1924, at Long Beach, California, leaving a last will and testament wherein, after providing for the payment of his just debts and liabilities, he devised the residue of his estate to a trustee who is directed to hold, control, invest and re-invest the same, supplying the income and such portion of the principal thereof as might be necessary for the support and maintenance of his brother, Sam V. Wirt, during the term of his natural life, and further providing that upon the death of his said brother all the residue of his estate should be equally divided between Hiram Lodge No. 18, F. & A. M. of Delaware, Ohio, and Jackson Lodge No. 146, F. & A. M. of Seymour, Indiana, share and share alike, which lodges were each to place its share of the residue of his estate in a special fund, “to be known as the Gary Wirt Fund, and only the income of said fund shall be used for current expenses” of each of said lodges. Said will was duly admitted to probate and the administration thereof proceeded up "to the time for final distribution thereof, whereupon each of said Masonic lodges presented and filed a petition for distribution to them of the residue of said estate in accordance with the terms of the will. The heirs at law of said decedent appeared and filed their contest and objection to such distribution, alleging as the sole ground of such contest “that the bequest in the will of said deceased was and is void under the provisions of article XX, section 9 of the Constitution of the state of California”; wherefore they prayed for the distribution of the entire residue of the estate. The matter of this contest came on for hearing before the trial court and upon such hearing it was decided by the court “that the bequest in

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said will to Hiram Lodge No. 18, F. & A. M. of Delaware, Ohio, and Jackson Lodge No. 146, F. & A. M. of Seymour, Indiana, was and is void under the provisions of article XX, section 9 of the Constitution of the state of California. ’ ’ Thereupon the court made its order and decree for the distribution of the residue of said estate to the heirs at law of said deceased. The Masonic lodges in question have taken and are now prosecuting their appeal from said order of the court.

Section 9 of article XX of the state constitution provides that “No perpetuities shall be allowed except for eleemosynary purposes.” The term “eleemosynary” as used in the foregoing provision has been held to be synonymous with “charitable” as the latter word is used and understood in treatises and decisions upon the subject of trusts.