Martin v. Lynch

BISHOP, J, pro tem.* The Attorney General of the state has appealed from a part of the decree made in response to the petition of the executor of the will, who had prayed that the court “determine who are entitled to distribution of the estate.” (Section 1080, Prob. Code.) The particular provision of the will that created the need for guidance was this one, which followed some eight specific bequests: “Balance of my estate to be divided between help for the blind the Lepor Colony & Brightside orfonage Holyoke Mass.”

[712]The decree recited, among other things, that by the words just quoted the testatrix intended the residue of her estate to be divided into three equal parts, one third to go to Brightside Orphanage, one third to Maryknoll Fathers, who operate a leper colony, but that the words “help for the blind” were “too vague, indefinite and ambiguous, to constitute a charitable bequest, or a charitable trust, ’ ’ and that the third of the bequest dependent upon them was to be distributed to the various relatives designated by sections 225, 228 and 229 of the Probate Code. It was from the part of the decree last mentioned that the Attorney General appealed.

Preliminarily we note that the decree recites that evidence was taken but the record before us contains no part of it. The parties have argued their causes on appeal, however, without questioning appellant’s unequivocal statements that “The sole issue presented by this appeal is whether or not (the) bequest for ‘help for the blind' is valid. No factual matters are involved and hence the issue is purely one of law. As such this honorable court is not bound by the adjudication of the court below. Estate of Mayer, 237 Cal.App.2d 549, 551 [47 Cal.Rptr. 44, 45].” We shall proceed upon the same theory and, as we are persuaded we may and should do, we are reversing that portion of the decree from which the appeal has been taken.

Without question, the words used by the testatrix leave several matters at loose ends. Who is to receive from the executor the one-third-of-the-balance which is to be used for “help for the blind”? What manner of help is to be given? What persons are to receive it? Were it not for the guiding and controlling precedents it might well be held that the words used were too indefinite and uncertain in objectives to be given effect.

We are not without those precedents, however. We shall note but two of them. In Estate of De Mars (1937) 20 Cal. App.2d 514 [67 P.2d 374], the residue of the estate was disposed of by the following words: ‘ ‘ Any amount left go to the poor soldiers Leterman Ilosital.” The probate court held that the residue should go to the commanding o£6cer of Letterman General Hospital, and certain heirs at law appealed. We find it helpful to note some of the things said: (20 Cal.App.2d p. 515 [67 P.2d 375].) “The validity of the bequest as a charitable trust is attacked upon the grounds that the will did not declare in certain language that a trust was intended, that the beneficiaries are unnamed, and that the duties of the trustees are indefinite. The question of the intention of the testatrix is a mixed question of law and fact which the probate court