In re the Estate of Robinson

Ross, J. Henry E. Robinson, by his will executed in the State of Hew York, bequeathed “to the mayor, common council and commonalty of the city of San Francisco, California, the sum of forty thousand dollars ($40,000), in trust, to be by them and their successors invested to the best advantage, the interest accruing thereon to be paid out from time to time to the destitute women and children of the city of San Francisco, California, in such a manner as such mayor and common council may deem most proper and beneficial.”

Mr. Robinson having died and administration upon his estate having been had, the court below, in the decree of distribution, directed the executor to pay, out of the estate, “to the mayor and board of supervisors of the city and county of San Francisco the sum of forty thousand dollars in trust, to be by them and their successors in office invested to the best advantage, the interest accruing thereon to be paid out from time to time to the destitute women and children of the city of San Francisco, California, in such a manner as such mayor and board of supervisors may deem most proper and. beneficial.” The appeal is from this portion of the decree.

We do not understand appellants to claim that the court below erred in substituting the legal appellation of the municipality in question for that employed by the testator, but their claim is that the bequest itself is void because prohibited by statute.

In the Estate of Hinckley, 58 Cal. 457, we held that trusts for perpetual charitable uses are not in conflict with the Constitution of the State, nor are they in conflict with those provisions of the Civil Code which prohibit perpetuities; and further, that the perpetuities prohibited by the common law do not include trusts for charitable uses. It is here contended, however, that by section 1275 of the Civil Code, all corporations, other than those formed for scientific, literary, or solely educational purposes (within which exception the municipality in question does not come), are prohibited from taking under a will, unless expressly authorized by statute to take, and that the statute nowhere authorizes this corporation to take a bequest in trust for charitable uses.

The first of these propositions is obviously true, for the statute in terms so declares. It reads: “Sec. 1275. A testamentary [622]disposition may be made to any person capable by law of taking the property so disposed of, except corporations other than those formed for scientific, literary, or solely educational purposes, cannot take under a will, unless expressly authorized by statute.” But section 1313 of the same Code is as follows; “Mo estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society, or corporation, or to any person or persons, in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator; and if so made at least thirty days prior to such death, such devise or legacy, and each of them, shall be valid: provided, that no such devises or bequests shall collectively exceed one third of the estate of the testator leaving legal heirs, and in such case a pro rata deduction from such devises or bequests shall be made, so as to reduce the aggregate thereof to one third of such estate; and all dispositions of property contrary hereto shall be void and go to the residuary legatee or devisee, next of kin, or heirs, according to law.”