Bishop's School Upon the Scripps Foundation v. Wells

MARKS, J. This is an appeal from a decree made in probate holding void a bequest in the will of Wheeler J. Bailey, deceased, made to the Bishop’s School Upon the Scripps Foundation. The will was executed within thirty days of the death of deceased. The sole question to be decided is whether the Bishop’s School Upon the Scripps Foundation, which we will hereafter refer to as the School, is a charitable corporation within the meaning of section 41 of the Probate Code and therefore prohibited by that section from taking under the will because it was not executed more than thirty days prior to the death of the testator.

The facts are not in dispute and are thus summarized in appellant’s opening brief, with references to the record deleted :

“Some 24 or 25 years ago a Mr..McKenzie interested Mr. Bailey, the decedent, in Bishop’s School. The decedent at the time of his death had been secretary and treasurer of Bishop’s School for a number of years. He died on March [1376], 1935. His will was executed on February 21, 1935. Bishop’s School is named as one of the residuary legatees in the will of the decedent and is to receive, if the bequest is valid, 36% of the residue and remainder of decedent’s estate. The residue amounts to approximately $106,000 after the payment of all taxes and expenses of administration.

“Bishop’s School was incorporated in California in 1910 under Title XVII of the Civil Code comprising sections 649 to 651d, both inclusive, relating to Colleges and Seminaries of Learning.

“The purpose for which Bishop’s School was formed as declared by Article Second of its Articles of Incorporation is to ‘create, maintain and conduct under the auspices of the Protestant Episcopal Church a seminary and institution of learning devoted to the Primary, Secondary and Higher Education of youth of both sexes with such branches, departments and schools as may be necessary or proper for the carrying out of said educational purposes.’

“Bishop's School is managed by a board of eleven trustees, a majority of whom must always be members of the Protestant Episcopal Church. The members of the corporation are the same persons who are trustees and any person upon ceasing to be a trustee automatically ceases to be a member thereof.

“Bishop’s School is now conducting and for many years last past has conducted a school for girls at La Jolla, in the City of San Diego, and for many years past has not given instruction to boys; tuition is usually charged for students in the school but the school provides and gives scholarships to some of its students; any girl of good reputation and possessing the necessary academic training is eligible for admission as a student in the school, and no restriction is placed thereon as to color, race, or religion.