In re the Estate of Ward

Appellant, the next of kin of the deceased, appeals from the decree of final distribution in the above-entitled estate.

By said decree the estate was distributed in accordance with the provisions of the will and codicils of the deceased. In the trial court appellant objected to such distribution on the ground that a provision of the second codicil, which was executed within thirty days of the death of the testator, was invalid under section 1313 of the Civil Code (now section 41 of the Probate Code). The provision of the codicil claimed to be invalid reads as follows:

“In ¿ddition to the bequest and devise of one-fourth of the rest and residue of my estate in paragraph 'Twelfth' of my said will and testament made to the person who at my death shall be the pastor in charge of St. Patrick’s Roman Catholic Church at San Jose, California, I give, devise and bequeath unto such person, one-half of the rest and residue of my estate of every kind and character and wheresoever situated to be used by such person to procure masses to be said for the repose of my soul.”

Under this provision the specified portion of the residue of the estate, amounting in value to- about $5,000, was distributed to Rev. Richard Collins, who was the pastor of the designated church at the time of the death of the deceased, “to procure masses to be celebrated for the repose of the soul of the decedent”.

Such bequests, however, have been looked upon with favor and upheld in most jurisdictions, but not always upon the same grounds. In some jurisdictions bequests to pastors for the purpose of masses have been treated as valid gifts to the pastors and not as trusts. (Sherman v. Baker, 20 R. I. 446 [ 40 L. R. A. 717 , 40 Atl. 11 ]; Harrison v. Brophy, 59 Kan. 1 [ 40 L. R. A. 721 , 51 Pac. 883 ]; In re Zimmerman’s Will, 22 Misc. Rep. 411 [ 50 N. Y. Supp. 395 ]; In re Howard’s Estate, 5 Misc. Rep. 295 [ 25 N. Y. Supp. 1111 ].) This view appears to be the one adopted by our own Supreme Court. (Estate of Hamilton, 181 Cal. 758 , at p. 764 [ 186 Pac. 587 ].) In other jurisdictions bequests for masses have been sustained as private trusts despite the fact that there is no living beneficiary. (Moran v. Moran, 104 Iowa, 216 [ 65 Am. St. Rep. 443 , 39 L. R. A. 204 , 73 N. W. 617 ].) Still other jurisdictions have felt the necessity of treating such bequests as charitable trusts in order to sustain them.

Before discussing the authorities in this jurisdiction, we should further analyze the precise question before us. Section 1313 of the Civil Code, so far as it may have any application to the present case, reads as follows: “No estate, real or personal, shall be bequeathed or devised to any charitable or benevolent society or corporation, or to any person or persons in trust for charitable uses, except the same be done by will duly executed at least thirty days before the decease of the testator.” In the present case we find no bequest to “any charitable or benevolent society or corporation”. We are dealing with a bequest to a person and unless such bequest was “in trust for charitable uses” the above-mentioned section has no application. Appellant contends that such bequest is one “in trust for charitable uses”, while respondent contends that there is no trust and

Our attention has been called to but two cases in this jurisdiction dealing with this question of bequests for masses. In Estate of Lennon, 152 Cal. 327 [ 125 Am. St. Rep. 58 , 14 Ann. Cas. 1024, 92 Pac. 870 ], a bequest of $3,500 to Bishop Conaty “to have the same amount of masses celebrated as soon as possible for my soul” was held not to be “a bequest for charity or charitable use” within the meaning of section 1313 of the Civil Code. Subsequently the Supreme Court had under consideration several bequests of a somewhat similar nature in Estate of Hamilton, 181 Cal. 758 [ 186 Pac. 587 ], On pages 764 and 765 of the opinion the court considered the bequests made by the testator to the pastors of several churches “for masses for the repose of the soul of John P. Gallagher” and held said section 1313 was not applicable as these bequests created no trust. The court points out that while the pastors “receive the money upon the obligation to offer masses as required, such obligation does not go to the use or disposition of the money”. The court there considered other bequests to certain bishops of the Roman Catholic Church for masses for the repose of the souls of the testator and other persons to be said in certain designated churches within the jurisdiction of said bishops and held section 1313 of the Civil Code to be applicable to such bequests.’ The distinction made by the court was that the last-mentioned bequests created trusts as it was intended that the bishop “would use the legacy, not for his own benefit or as he saw fit, but for paying the stipends of the pastors in whose churches and by whom the masses were to be offered” and that the obligation of the bishop “was one as to the disposition and use of the money given him”. The court then proceeded to declare that under the evidence before it “as to the purposes and results of the mass according to the doctrine of the church”, such a bequest “in trust for masses is a trust for charitable uses”.

We do not believe that the evidence before us on this subject is the same as the evidence considered by the court in Estate of Hamilton, supra. The Supreme Court there discussed the opinion in Estate of Lennon, supra, and said that the question of whether the bequest for masses is a bequest for a charitable use is “purely a question of fact, a

A bequest to an individual does not come within the meaning of section 1313 of the Civil Code unless it is a bequest both “in trust” and “for charitable uses”. This is clearly indicated in Estate of Hamilton, supra, at page 772, where the court said: “Section 1313 of the Civil Code provides no limitation upon gifts in general for charitable purposes. It places such limitation only upon gifts to charitable corporations or societies or in trust for charitable uses. The bequests in this case to the pastors do not come in either o£ these classes.”

In the present case the bequest was to the pastor with no direction as to the place or places in which or the person or persons by whom the masses should be read. The pastor was himself a Catholic priest who was capable of celebrating the masses and he could celebrate all of the masses himself or he could, if he saw fit, obtain the co-operation of other priests for that purpose. There is nothing to show that the testator intended to impose any obligation on the pastor other than the obligation to see that the masses were said and he was not required to go beyond his own efforts to fulfill this obligation. In other words, the obligation did not “go to the use and disposition of the money” and there was no trust (Estate of Hamilton, supra; Sherman v. Baker, supra; Harrison v. Brophy, supra; In re Zimmerman’s Will, supra; In re Howard’s Estate, supra.)

The decree of final distribution is affirmed.

Sturtevant, J., and Nourse, P. J., concurred.