Lee v. Voice of Prophecy

FLEMING, J. Appeal from an order determining interest in an estate.

Verna Robison, the decedent, was survived by her father, brother, and sister. Under her will, as amended by a valid codicil, she gave all stocks, bonds, and cash to the Southern California Association of Seventh Day Adventists. She divided the residue of her estate into thirds, one-third to be apportioned among the father, sister, and brother, one-third to go to Voice of Prophecy, and the remaining third to Faith for Today. Her will expressly provided “In the event any provision herein contained in favor of the Voice of Prophecy, a Corporation, and Faith for Today, a Corporation, shall be invalid or wholly or partially inoperative, for any reason whatsoever, then that portion of my estate which [they] are prevented from receiving on account of said invalidity, shall be distributed to La Sierra College, located at La Sierra, California.” (Cf. Estate of Sanderson, 58 Cal.2d 522, 523-524 [25 Cal.Rptr. 69, 375 P.2d 37].) The parties stipulated that Voice of Prophecy, Faith for Today, and the Seventh Day Adventist Church are charities.

The principal issue is the effect on this will of Probate Code, sections 41 and 42.1 The great bulk of the estate consisted of [21]stocks, bonds, and cash. The trial court found that the limitations imposed by section 41 on testamentary gifts to charity restricted the amount of the bequest to the Seventh Day Adventist Church to one-third of the total estate. The other two-thirds fell within the residuary estate, and under the will the father, assignee of the brother and sister, became entitled to one-third of the residue. The remaining two-thirds of the residue, which the testator had willed to Voice of Prophecy and Faith for Today, could not, in the trial court’s view, be given to her intended beneficiaries because a third of the total estate had already been allocated to charity. However, the trial court found that the substitute beneficiary, La Sierra College, was an educational institution excepted by Probate Code, section 42, from the restrictions on charitable testamentary disposition imposed by section 41, and determined that two-thirds of the residuary estate should be awarded to La Sierra College.

The trial court erred. If a substitutional gift is made to a person or organization not subject to the restrictions of section 41, the effect of the substitutional gift is to nullify the surviving relative’s status as one “who, under the will, or the laws of succession, would otherwise have taken the property so bequeathed or devised, ..." (Prob. Code, §41.) Because of the substitutional gift, relatives who would otherwise have taken the property lose their status as prospective beneficiaries, the original charitable gift no longer falls within the limitations imposed by section 41, and the gift passes to the original donee under the terms of the will. (Estate of Sanderson, 58 Cal.2d 522, 527 [25 Cal.Rptr. 69, 375 P.2d 37] ; Estate of Haines, 76 Cal.App.2d 673, 679 [173 P.2d 693]; Estate of Davis, 74 Cal.App.2d 357, 361-362 [168 P.2d 789]; Witkin, Summary of Cal. Law (1960), pp. 3022-3024.) “Under the terms of section 41 a relative of the enumerated class may avoid a charitable legacy or devise only if and to the extent he