Capital Lodge No. 87 v. Pfund

PEEK, J. This is an appeal upon the judgment roll alone from that portion of the decree of distribution declaring void a bequest of $1,000 upon the grounds that the legatee was not a cemetery authority within the meaning of chapter 4, articles 2 and 4, division 8, part 3 of the Health and Safety Code; that the trust attempted to be created was not a charitable use and is void in that it purports to create a perpetuity in violation of section 9, article XX of the Constitution of this state.

[445]The particular provision of the will provided as follows:

“To Capital Lodge No. 87 of the Independent Order of Odd Fellows, Sacramento, California, I give and bequeath the sum of One Thousand Dollars ($1,000.00), but in trust, nevertheless, for the following uses and purposes:

To supply and erect a headstone or marker for myself and wife (if she chooses to be buried beside me) on my cemetery lot in the City Cemetery of Sacramento City, said marker to be similar to and uniform with the four markers already in place- and which cost Seventy Five Dollars (75.00) a piece, and to be of Barrie Vermont Granite which is now handled in Sacramento by Carlaw Bros. The income from the balance of said One Thousand Dollars ($1,000.00) after deducting the expenditure aforesaid shall be used by said Trustee for the perpetual care and upkeep of my said cemetery lot in said cemetery.”

Appellant’s contentions are (1) that the evidence is insufficient to sustain the findings, (2) that the trust is authorized by section 8738 of the Health and Safety Code and (3) that as no evidence was introduced to show that said lodge is not a charitable institution or a cemetery association within the meaning of the applicable provisions of said code, the judgment is not supported by the evidence.

It is readily apparent that the bequest to the appellant fraternal order specifically providing for “perpetual care and upkeep” of the testator’s cemetery lot must be held to be void since “no perpetuities shall be allowed ...” (Const., art. XX, § 9) unless it can be said (and it is our conclusion that it cannot) that such bequest comes within the stated exception in the concluding portion of said constitutional provision as being for “eleemosynary purposes,” which term has consistently been held to be synonymous with the word “charitable.” (Estate of Wirt, 207 Cal. 106 [277 P. 118]; Collier v. Lindley, 203 Cal. 641 [266 P. 526].) Necessarily the constitutional provision is broad in scope since the question of what is a charitable use can only be answered by recourse to present day conditions generally. It is obvious that the very nature of the subject matter precludes the adoption of any formula or standard for its determination. (People v. Cogswell, 113 Cal. 129 [45 P. 270, 35 L.R.A. 269].)