Boyle v. Pasadena College

McCOMB, J. Mr. Walter Davis died October 17, 1943, leaving surviving him a sister, nephews and nieces. On July 10, 1943, he had executed a will which contained, among others, these two provisions:

“Tenth: After carrying out all the foregoing provisions of this my will, I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed and wherever situated, in equal shares to the following named beneficiaries, to wit:

Pasadena Some for the Aged, of Altadena, California;

Boys’ and Girls’ Aid Society, of Altadena, California; Pasadena Preventorium, of Altadena, California;

Salvation Army, Inc., Pasadena Branch, Pasadena, California; Los Angeles Orthopaedic Foundation, Los Angeles, California; San Francisco Theological Seminary, San Anselmo, California;

Trustees of Pasadena College (Nazarene), Pasadena, California;

Travelers Aid Society, Los Angeles, California; and Community Chest of Pasadena, Pasadena, California.

“In the event any of the charitable corporations or institutions hereinabove named in this Paragraph Tenth shall not [359]be in existence at the date of my death, or for any reason under the laws of the State of California cannot take and receive the devise and bequest hereinabove made to such charitable corporation or institution, then in such event I give, devise and bequeath the portion of said residuary estate devised and bequeathed to such charitable corporation, in equal shares, to the other charitable corporations or institutions hereinabove named which are then in existence and can take and receive the property herein devised and bequeathed to them.

“Eleventh: In the event that for any of the reasons set forth in Sections 41, 42 or 43 of the Probate Code of the State of California my executors or executor are unable to distribute any portion of my estate upon my death as hereinabove provided in Paragraphs Eighth and Tenth of this my will, I direct that in such event said portion of my estate shall be distributed, and I give, devise and bequeath the same, to James B. Boyle of San Marino, California, and to Clarence A. Matthews, of Pasadena, California, or to the survivor of them. Without intending to create any trust or other charge, condition or limitation enforceable in either law or equity, I request the persons or person receiving said property to use and dispose of the same so as to carry out my wishes.”