Daytona Institute v. Dow

LENNON, J.

By an order for partial distribution in the above-entitled cause it was decreed that George S. Doane died intestate as to the residuary portion of his estate and that the residue of the estate be distributed to the'heirs at law. The correctness of this adjudication is the sole question raised upon the present appeal.

Clause tenth of the last will and testament of the decedent, dated April 28, 1920, provides :

“All the rest and residue of my property of whatever nature and wheresoever located, I give, devise and bequeath to the National Bank and Trust Company of Pasadena, a National Banking Association, of Pasadena, California.”

The trial court’s conclusion that this clause of the will is invalid is based upon section 1275 of the Civil Code, which provides that corporations other than counties, municipal corporations, and corporations formed for scientific, literary, or solely educational or hospital purposes cannot take under a will, unless expressly authorized by statute. Appellants concede that the National Bank and Trust Company of Pasadena is incompetent to take property under a will for its own use and benefit, but contend that the residue of the estate must be distributed to the bank in its capacity of trustee, that being the only capacity in which the bank could lawfully receive the property. In support of the contention that it was the intention of the testator to devise and bequeath to the bank as trustee only, appellants introduced in evidence a letter signed by the decedent and reading as follows:

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“National Bank & Trust Company of Pasadena,

“Pasadena, California.

“Gentlemen:

“I hereby request that you as residuary legatee under my last will and testament dated January 26, 1920, distribute any property or funds which may come to you as such residuary legatee, as follows:

“1. To the Doane Orphanage ten thousand dollars

($10,000).

“2. To the Rescue Mission, Springfield, Massachusetts, one thousand dollars ($1000).