Tkachuk v. Russian Ukrainian Evangelical Baptist Union

Opinion

KINGSLEY, J. This is an appeal from a judgment in favor of respondent Union Church. Decedent left the bulk of his estate to the church and left a small sum to his brother. Appellant, decedent’s brother, alleges that the gift to the church is void under Probate Code, section 51.

[16]At the time of decedent’s death he was a resident of California and he left property located in Los Angeles.

Prior to moving to Los Angeles, decedent lived in Detroit for 25 years where he was a member of the First Russian Baptist Church. The First Russian Baptist Church is the local Detroit church of respondent Union Church. In August 1940, respondent Andrew Myczka became minister of the Detroit church. Decedent was a Sunday school teacher, a deacon, and member of the church board. Decedent attended services on the average of three times a week. On several occasions decedent asked respondent Myczka to type a will for him, but Myczka advised him to see an attorney. In 1947, Myczka finally acceded to decedent’s request, and decedent dictated his will while Myczka typed it for him. Decedent and Myczka took the will to Rose Lucas, a notary public in Michigan. Decedent declared to Mrs. Lucas that this document was his will, he signed it in both the presence of Myczka and Mrs. Lucas, and he requested Mrs. Lucas and Myczka to be witnesses. In the presence of the decedent, and in each others’ presence, Mrs. Lucas and Myczka signed the document. Sometime later, Myczka left for another town in Michigan and decedent went to California.

The Union Church was incorporated in Connecticut. Reverend Myczka was an officer, treasurer and member of the executive committee (which was the board of directors) of the Union Church. Myczka receives a salary from the church for his services as minister, but receives no compensation for his services as treasurer or as board member. The treasurer and the president are custodians of current funds of the Union which must be received and disbursed as directed by the Union or executive committee.

Section 5 of the church’s constitution makes the executive committee legal trustees of the church’s property, giving the president or treasurer the power to represent the church in property transactions. The executive committee is granted the power to deal with the bequests to the church under section 6 which reads: “The Executive Committee shall take, receive, hold, convey and dispose of any and all manner of land, rents, tenements and hereditements [¿7c] which may be given, bequeathed, devised or conveyed to the Union; [T]he Executive Committee shall invest any sum or sums of money given, or bequeathed to the Union in the legal investments and for the purchase of ground, rents, of [mc] other real estate; and the Executive Committee may sell, convey and dispose