Estate of Tobin — 1 Myrick 134

Majority

p. 134

ESTATE OF RICHARD TOBIN.

No. 6566

Aug. 22, 1877.

Headnote

Devise ob Bequest to “ Chabitable ob Benevolent Society.”—The Boys’ Roman Catholic Orphan Asylum at San Rafael is a charitable and benevolent society, under Sec. 1313, C. 0., and is, as such, entitled to take a bequest.

Construing sections, C. 0., 1275,1313.

D. Rogers, for executor.

J. M. Burnett, for Asylum.

G. W. Tyler and Mogan & Sullivan, for other legatees.

The will is dated June 10, 1875, and disposes of the estate as follows:

p. 135

To the Boys’ Boman Catholic Orphan Asylum at San Bafael, Marin County, California, one-fourth;

To Michael Tobin and Alice Tobin, father and mother of testator, one-fourth;

To Ellen A. Fitzgerald all the rest and remainder, being the one-half.

It is claimed on behalf of all the other legatees that the legacy to the Orphan Asylum is void under Sec. 1275, C. C.; on behalf of Fitzgerald that she will take that share as residuary legatee; and on behalf of the father that he will take the share as heir, and that Fitzgerald’s interest is limited by the will to the one-half of the estate, as named in the will.

The effect of Sec. 1313, C. C., is to qualify the terms of Sec. 1275; and charitable and benevolent societies and corporations may take under a will. The “ Boys’ Boman Catholic Orphan Asylum at San Bafael,” being a charitable and benevolent society, the bequest to it is good, and the estate should be distributed according to the terms of the will.