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District Court of Appeal, Second District, Division 2, California.


Civ. 12696

Decided: September 21, 1940

Argabrite & Elver, of Ventura, for appellant. Lawrence Edwards and Charles H. Epperson, both of Stockton, for respondent.

This is an appeal by the Eastern Star Homes of California, a corporation, from a judgment which decreed that a bequest to said corporation was a charitable bequest and consequently void by reason of the fact that it was in violation of section 41 of the Probate Code. Said section inhibits a bequest of property to a charitable or benevolent corporation or to any person “in trust for charitable uses” if the testator leaves any ascending, descending or collateral heirs, “unless the will was duly executed at least thirty days before the death of the testator” and, even though executed, such legacies shall not collectively exceed one-third of the testator's estate as against such heirs.

By her will, executed more than thirty days but less than six months prior to her decease, decedent Ella M. Henderson provided for a specific bequest of $500 to one Bessie Peck and bequeathed the residue of her estate, amounting to $15,729, to said corporation, appellant herein, “to be used by the trustees in such manner as may be most beneficial to the home and its inmates”. The will having been admitted to probate, the executrix, at the request of a nephew of decedent, petitioned for a partition of the estate on the ground that appellant was a charitable corporation and for that reason was entitled to only one-third of the estate. Upon the issues presented by the petition the court made its findings in accordance with the petition of the executrix, whereby appellant was denied the right to an award of the whole of said residue, but, on the contrary, two-thirds of the residue was awarded to respondents, certain collateral heirs of decedent, each of whom gained his proportionate share.

Appellant is a non-profit corporation organized in 1930 under section 593, title XII, part IV, division I of the Civil Code, “by the Grand Chapter of the State of California of the Order of the Eastern Star (1) to own, control, conduct and manage homes, hospitals and asylums for the care, maintenance and support of aged, indigent or infirm members of the Order of the Eastern Star; (2) to assist and further all projects and activities connected with the foregoing purposes; (3) to do and perform every act and thing necessary or convenient to carry out the above named purposes to the same extent as natural persons might or could do.” Said Order of the Eastern Star is a fraternal organization with approximately 96,000 members affiliated in 492 local chapters within the state. Its membership is limited to persons elected to membership from Master Masons, their wives, widows, daughters, mothers and sisters. Every member pays an initiation fee as well as annual dues and such assessments as are levied by the Grand Chapter or the local chapter with which the member is affiliated.

Appellant owns and maintains a home for aged, infirm and indigent members of the Order of the Eastern Star. In order to become a resident of said home one must be nominated by a local chapter in accordance with restrictions imposed by the laws of the Grand Chapter and the by-laws of the corporation, after which the board of trustees grants the membership. The restrictions considered by the board in awarding membership to the home relate to age, health, the previous term of the applicant's membership in his local chapter and to the number of residents which any such local chapter may have in the home at the time. When admitted into the home, a member must assign all of his assets to the corporation. Residence in the home is confined strictly to members in the order. The home has a capacity for 80 residents and is supported by annual assessments levied on members of the order and by the income on investments made from the surplus of previous assessments.

At the trial appellant contended that said petition for partition did not state facts sufficient to constitute a cause of action against appellant, as required by section 426, Code of Civil Procedure. In view of our conclusion with reference to the nature of appellant it is unnecessary to discuss said petition at length. Suffice it to say that the rules of pleading that control in civil actions do not apply to probate proceedings except in those instances where other provision is not contained in the Probate Code. Probate Code, sec. 1233. The petition complies with section 1100 of said code in describing the property and in supplying the names of those claiming interests in the estate, and the share of each so far as is known to the petitioner. We therefore proceed to a consideration of the paramount issue presented by this appeal, namely, whether the finding that appellant is a charitable organization is supported by the evidence.

Since the bequest to appellant did not by its terms create a trust but was in the form of an absolute bequest to appellant, our only problem is to determine whether appellant is a charitable corporation in contemplation of said section 41 of the Probate Code. While it is true that the act of rendering care to the aged and indigent members of the Order of the Eastern Star is benevolent in its nature, that fact alone is insufficient to establish the character of appellant as a charitable organization. “A charity in the legal sense may be more fully defined as a gift to be applied, consistent with existing laws, for the benefit of an indefinite number of persons”. Zollman on Charities, sec. 201. “A charity is a donation in trust for promoting the welfare of mankind at large or of a community or some class forming a part of it, indefinite as to numbers or individuals.” Sec. 203, Zollman, etc. “A gift or bequest for the benefit or aid of defined persons is not a charity, but a private trust only. * A fund, collected by rates and assessments being in no respect derived from bounty or charity, is not a charitable one.” 11 Cor.Jur., 301–303, 14 C.J.S., Charities, § 1. “Since their benevolence begins and ends at home, they will not receive recognition as charities though they may contemplate the occasional exercise of charity and though they aim at the suppression of vice and immorality. *” Zollman, Chapter 206. The essential features of a public charity are that it is not confined to privileged individuals but is open to an indefinite public. It is this indefinite, unrestricted quality which gives it its public character. City of Bangor v. Masonic Lodge, 73 Me. 428, 40 Am.Rep. 369. “A charity maintained by the Odd Fellows for the benefit of such persons as they may see fit to admit to its enjoyment * is strictly a private charity.” Widows' & Orphans' Home of Odd Fellows v. Bosworth, 112 Ky. 200, 65 S.W. 591, 592. In a case in Ohio, instituted to prevent the taxation of the assets of an Odd Fellows Lodge, it was held that the lodge was not a charitable organization. “A charitable or benevolent association which extends relief only to its own sick and needy members, and to the widows and orphans of its deceased members, is not ‘an institution of purely public charity.’ ” Morning Star Lodge v. Hayslip, 23 Ohio St. 144.

In the case of a Masonic home, conducted by the Grand Lodge for the support of indigent, afflicted and aged Free Masons, it was held that the home was not a public charity because admission thereto depended entirely on the fact of voluntary association with a particular society so that the group from which the members were selected was not a class of the public. It was held that the word “public” relates to or affects the whole people of a state, whereas to be admitted to said Masonic Home one must be a Mason. “When the eligibility of those admitted is thus determined,” said the court, “it seems to us the institution is withdrawn from public, and put in the class of private, charities. * when the right to admission depends on the fact of voluntary association with some particular society, then a distinction is made which concerns not the public at large.” Philadelphia v. Masonic Home, 160 Pa. 572, 28 A. 954, 955, 23 L.R.A. 545, 40 Am.St.Rep. 736.

The distinction between a fraternal and a charitable organization is clearly defined in Re Rathbone's Estate, 170 Misc. 1030, 11 N.Y.S.2d 506, 529, where the court said: “The distinction between a beneficial and a charitable society is clear. In the beneficial society the world outside the association's doors is essentially a stranger. The beneficial society is regardful only of its members. * Its membership is formed * to satisfy onerous conditions—financial, moral [and] civil *. The members have been drawn together by a mutual desire to be as they are. Once assembled they exclude all other persons from their society activities. The charitable institution is exactly the opposite in all the stated particulars allowing of comparison. * Charity is the proof of the profound paradox that to get one must give but the giving must not be for the purpose of the getting. * To qualify for admission to the primary benefits of charity the cardinal and sole requisite is need. Charity is regardful of others. To it the idea of a group of insiders excluding all outsiders—an idea so essential to an interpretation of the nature of a fraternal organization, especially secret fraternal organizations—is abhorrent.” (Italics added.)

Turning now from these learned authorities and decisions of distant jurisdictions, we find that our Supreme Court has made the meaning of a charitable corporation so clear as to be beyond cavil. In the Estate of Dol, 182 Cal. 159, 187 P. 428, 430, a decedent had left a bequest to the French Hospital of the city of Los Angeles. He died within less than thirty days after the execution of his will. His heirs sued to invalidate the bequest as one to a charitable or benevolent corporation. It was held that the French Hospital was not a charitable corporation. One of the essential features of a charitable use, said the court, “is that it shall be for the public benefit, either for the entire public or for some particular class of persons, indefinite in number, who constitute a part of the public. The persons to be benefited must consist of ‘the general public or some class of the general public indefinite as to names and numbers.’ ” The court held that the society which was the owner of the hospital was not a charitable society within the meaning of said section (at that time, Civil Code, sec. 1313). The society was established for the purpose of mutual assistance in case of sickness. Any white person was eligible for membership upon meeting the requirements and by paying the admission fee, and they were entitled to medical treatment in a hospital maintained by the society.

The facts relative to the French Hospital are very similar to those of the appellant and the Order of the Eastern Star. Only members of the Order of the Eastern Star are eligible for admission to the home. Membership in the order is limited to Master Masons and specified relatives and requires the payment of an initiation fee, annual dues and assessments. From the facts in this case it is made clear that the benefits of the home are extended exclusively to members of the order and are withheld from the general public or any particular class of the public indefinite in number. The argument made by respondents that the particular inmates of the home are indefinite in number, because their number is constantly changing and because membership in the order is likewise changing, is answered completely by the language of said last mentioned decision. The names and number of persons who may receive the benefits of the home are always ascertainable at any given time by reference to the records of the Order of the Eastern Star. Since it cannot be said that the beneficiaries of appellant are indefinite, it must necessarily follow that it is not a charitable organization within the purview of said section 41 of the Probate Code.

The Estate of Lubin, 186 Cal. 326, 199 P. 15, 16, cited by respondents, is clearly distinguishable from the facts of the instant case. That case involved the validity of bequests to the congregation of Beth Israel, a synagogue. The synagogue contended, as does appellant herein, that it was not a charitable corporation within the meaning of said section 1313 of the Civil Code because it was not an organization for the benefit of the public generally or for a particular class of the public, but was for the benefit of the particular individuals who make up the membership, and therefore comes within the rule of Estate of Dol, supra. “The immediate answer to this,” said this court, “is that the by-laws relied upon do not have the effect of limiting the purpose of the corporation to that of benefiting in a religious way only those particular individuals only who happen at the time to be members of the corporation”. The decision emphasizes that the privileges and benefits of said synagogue were extended to all of the Jewish faith as a class, whether members of the synagogue or not, and that included a part of the public indefinite in number. We have already adverted to the fact that the benefits of the home in the instant case are restricted to selected members of the Order of the Eastern Star and are not available to the public at large or to any class of an indefinite number of the public at large. Also cited are the Estate of Upham, 127 Cal. 90, 59 P. 315; Estate of Willey, 128 Cal. 1, 60 P. 471, but they are not apropos. The Upham case involved a bequest to the trustees of the Good Templars' Orphans' Home of Vallejo in trust for the use and benefit of the orphan children of said institution, which the court held to be given for charitable purposes. In the Willey case a similar bequest was made to certain Masonic lodges in trust for the use of the widows' and orphans' fund. Both bequests were declared to be for charitable purposes for the reasons that the persons to be benefited were vague and uncertain. In neither case were the beneficiaries required to be members of any organization or to pay dues or assessments for the privilege to be accorded to them. Moreover, from anything that appears, the beneficiaries in either case could not be ascertained by reference to the records of the Good Templars or of the Masonic lodges. Neither case involved the application of said code section 1313, Civil Code, to the validity of the bequest. The status of the Good Templars lodge and the Masonic lodge as charitable or non-charitable institutions was decided in neither case.

By reason of our conclusion that the evidence proves that appellant is not a public charity, it will be unnecessary to discuss other points raised by the appeal.

The judgment is reversed.

MOORE, Presiding Justice.

We concur: WOOD, J.; McCOMB, J.