Brown v. Mooberry

DRAPER, J. The only question on this appeal is the validity of the residuary clause of a holographic will which reads:

“The remainder to go to some charitable institution, or research fund, or for a suitable memorial to my mother and father (no statue or monument).”

By decree determining heirship the probate court found this provision invalid, and ordered distribution of the residue of the estate under the laws of succession. The attorney general appeals, Decedent’s will was executed more than 30 days but less than 6 months, before her death. Since she is survived by a sister, nephews and nieces, it follows that not more than one-third of her estate can go to charity. (Prob. Code, §§ 41, 43.) Thus approximately $50,000 is in issue here.

The parties impliedly concede that this provision, lacking certainty in its denomination of legatees, can be sustained only under the rules applicable to charitable trusts. Such a trust may exist even though no trustee is named and no intent to create a trust is stated. (Rest., Trusts, § 397(f); Estate of Faulkner, 128 Cal.App.2d 575 [275 P.2d 818]; Estate of DeMars, 20 Cal.App.2d 514 [67 P.2d 374].)

Respondents contend, however, that the residuary clause does not create a valid charitable trust because it fails to limit the bequest to wholly charitable purposes, and because it fails either to designate a class of charitable beneficiaries or to name someone to make such a selection.

The problem presented is essentially one of construction and, since no extrinsic evidence was introduced, is a question of law, upon which the independent judgment of this court is to be exercised. (Estate of O’Brien, 74 Cal.App.2d 405, 407 [168 P.2d 432].) In the construction of wills, that interpretation which will avoid intestacy is to be sought (Le Breton v. Cook, 107 Cal. 410, 416 [40 P. 552]), and a residuary clause is always to receive “a broad and liberal interpretation, with a view of preventing intestacy as to any portion of the estate” (O’Connor v. Murphy, 147 Cal. 148, 153 [81 P. 406]). Charitable bequests are favored and such a bequest will not be construed to be void, if it can possibly be made good. (Estate of Tarrant, 38 Cal.2d 42, 46 [237 P.2d 505, 28 A.L.R.2d 419], and cases there cited.)

To create a valid charitable trust, the bequest must limit the use of the fund to charitable purposes. If the language permits noncharitable, as well as charitable, uses the bequest cannot be held valid as a charitable trust. (Estate of Sutro, 155 Cal. 727, 734 [102 P. 920]; Estate of Hinckley, [22858]