City of Oceanside v. Moody

SLOANE, J.

The city of Oceanside is attempting by this action to have a certain fund set aside to its use under the last will of one George W. Houk.

The will under which the plaintiff claims, after making certain personal bequests, gives, devises, and bequeaths the residue of the estate to a trustee “to have and to hold in trust for the uses and purposes and with the powers hereinafter stated.”

Among the subsequent provisions is the following:

“My said Trustee shall, subject to the conditions hereinafter mentioned, pay to the city of Oceanside, county of San Diego, State of California, such sum that may be necessary, up to, but not in excess of, the sum of One Hundred Thousand Dollars ($100,000.00) providing said city of Oceanside donates a like sum, and providing further that said city builds within three years after my death with said money, a pleasure pier, the site to be selected by my Trustee. Upon the failure of the said city to perform said conditions, then the said sum shall be distributed with the residue of the trust property.”

Without having taken any steps to perform or guarantee the conditions imposed upon the municipality precedent to the enjoyment of this fund, the city of Oceanside brings this action to obtain an order of court distributing to the trustee

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for the purposes of this use the sum of one hundred thousand dollars.

The appeal is from the order of court denying this application.

The grounds of objection interposed by the defendants, representing the estate, are: (1) That the attempted bequest is invalid under the provision of section 1313 of the Civil Code that “no estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator”; (2) That if valid in its creation, the trust was not effective or operative for any purpose until the city of Oceanside had qualified to receive the benefits by providing a like fund as specified in the will; (3) That the bequest is void for uncertainty in that it cannot be determined therefrom the amount necessary for the purpose designated; (4) That the trust is not one that is authorized under section 857 of the Civil Code or any other provision of said code.