IN RE: BURNISON'S ESTATE.

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

IN RE: BURNISON'S ESTATE.

No. 13617.

Decided: August 18, 1948

Harry N. Grover and Everett H. Roan, both of San Francisco, for appellant. Geo. T. Washington, Asst. Sol. Gen. of United States, of Washington, D. C., Frank J. Hennessy U. S. Atty., and Robert B. McMillan Asst. U. S. Atty., both of San Francisco, and John T. Fowler Atty., Dept. of Justice, of Washington, D. C., for respondent.

The decedent, a resident of San Francisco, left a will reading as follows:

‘June 30 1932

205–3rd St

San Francisco California

This is my last Will & Wish

That I give all I own & possess to The United States government U.S.A. The beneficiary shall be executor My body shall be cremated after death

Signed Gust Burnison

Approved July 27 1944'

The testator left personal property appraised at $22,668.70. His heirs at law are three brothers, a sister, and thirteen nieces and nephews, all of whom petitioned for distribution of the whole estate to themselves on the ground that ‘the United States of America is not authorized by statute or otherwise to take under a will’ executed in California by a resident of this state. The United States filed written objections thereto which the court sustained. From the order denying the petition for distribution the heirs appeal.

‘At the outset of this consideration it is proper to say that the right to make testamentary disposition of property is not an inherent right or a right of citizenship, nor is it even a right granted by the constitution. It rests wholly upon the legislative will, and is derived entirely from the statutes.’ Estate of Walker, 110 Cal. 387, 390, 42 P. 815, 1082, 30 L.R.A. 460, 52 Am.St.Rep. 104.

‘Rights of succession to the property of a deceased, whether by will or by intestacy, are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction.’ Irving Trust Co. v. Day, 314 U.S. 556, 62 S.Ct. 398, 401, 86 L.Ed. 1734, 137 A.L.R. 1093.

By section 27 of the Probate Code our legislature has prescribed ‘Who may take by will’ as follows: ‘A testamentary disposition may be made to the state, to counties, to municipal corporations, to natural persons capable by law of taking the property, to unincorporated religious, benevolent or fraternal societies or associations or lodges or branches thereof, and to corporations formed for religious, scientific, literary, or solely educational or hospital or sanatorium purposes, or primarily for the public preservation of forests and natural scenery, or to maintain public libraries, museums or art galleries, or for similar public purposes. No other corporation can take under a will, unless expressly authorized by statute.’

The Government argues that the phrase ‘A testamentary disposition may be made to the state’ may be interpreted as including the United States. While it is true that historians and other writers frequently adopt the literary or rhetorical expression and speak of the nation as ‘the state’, the draftsmen of legislation as a rule choose language for its definiteness rather than its elegance. Surely if the legislature had intended to include the Federal Government it would have named it. As aptly said in United States v. Cooper Corporation, 312 U.S. 600, 606, 61 S.Ct. 742, 744, 85 L.Ed. 1071, “the ordinary dignities of speech would have led' to its mention by name.' Moreover, the collocation of ‘the state’ is with ‘counties' and ‘municipal corporation’, an obvious incongruity if the Government's argument were adopted.

That ‘the state’ means only California is clear from the legislative history of section 27, which prior to 1931 was section 1275 of the Civil Code. The original section contained the provision ‘that no corporation can take under a will, unless expressly authorized by statute so to take.’

In 1881 the legislature adopted ‘An Act to authorize the several counties, cities and counties, cities and towns of this State, * * * to receive property by gift, bequest, and devise, * * *’ (Stats. 1881 p. 2). In 1905 an amendment carried ‘counties' and ‘municipal corporations' into section 1275, and the code commissioner's note shows that ‘The amendment in substance incorporates into the section the provisions of the act of 1881, page 2, authorizing the several counties, cities and counties, cities and towns of the state, to recover property by gift, bequest and devise.’ (See legislative history subjoined to section 27). Clearly when ‘counties' and ‘municipal corporations' were thus added, those words went into section 1275 with the same geographical meaning which the act of 1881 had expressly given them, and which they had worn for twenty-four years. In 1931, then, when the legislature added ‘the state’ in connection with ‘counties' and ‘municipal corporations' it could not have meant any state other than California.

The case of United States v. Fox, 94 U.S. 315, 24 L.Ed. 192, is directly in point. The testator, a resident of the state of New York, devised and bequeathed all his property to the Government of the United States. The statute of New York provided that a devise of lands may be made ‘to any person capable by law of holding real estate; but no devise to a corporation shall shall be valid unless such corporation be expressly authorized by its charter or by statute to take by devise.’ The sole question was as to ‘the validity of a devise to the United States of real estate situated in the State of New York’. The Supreme Court held, as the state court had, 52 N.Y. 530, 11 Am.Rep. 751, that this question had to be determined by the laws of New York. The court, speaking through Mr. Justice, Field, said: ‘The term ‘person’ as here used applies to natural persons, and also to artificial persons,—bodies politic, deriving their existence and powers from legislation,—but cannot be so extended as to include within its meaning the Federal government. It would require an express definition to that effect to give it a sense thus extended. * * * A devise to the United States of real property situated in that State is, therefore, void.'

True the New York law spoke only of devisees of real property while the instant case deals with a bequest of personalty.

The reasoning of the Fox case, however, based as it is on the right of a state to say who can, and who cannot, take by the will of one of its residents, applies with equal force to this case. Indeed the Supreme Court as recently as 1942 in the Irving Trust Co. case, supra, cited the Fox case as supporting its broad statement, already quoted, that ‘Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction.’

The Government's contention that if the state law should be construed as invalidating the bequest ‘serious constitutional questions would arise’ is answered by the Irving Trust Co. case. Its claim that, assuming ‘that the Fox case cannot be distinguished, it must be regarded as overruled’, is answered by the court's citation of it as recently as 1942.

It is not necessary to decide whether the words ‘authorized by statute’ found in the last sentence of section 27 mean a statute of this state only, or one of any state, or an act of the Congress, for the Government says in its brief that ‘Various Federal statutes enacted from time to time have authorized particular agencies of the Government to acquire property by will and to apply it to stated uses' and then frankly concedes that ‘On the other hand, no Federal statute of general application has purported to authorize the United States to so acquire property.’

The Government relies chiefly on Estate of Hendrix, 77 Cal.App.2d 647, 176 P.2d 398, 400, and incorporates into its brief the brief it filed in that case. The bequest there was to the ‘United States Veterans Administration’, an agency of the Government. For the reason appearing in the Hendrix opinion the questions presented in that case and in this are quite dissimilar. This bequest is to the United States of America, without qualification. It is not to any agency of the Government, incorporated or unincorporated, or to the Government as trustee, or for any particular purpose or use, charitable, benevolent or otherwise. It is in the same general form as was the devise in the Fox case, hence the question presented is simply whether the United States eo nomine can take by will under our statute. To answer it otherwise than in the negative would be ‘to insert what has been omitted’ from the statute (Sec. 1858, Code Civ.Proc.).

The Government relies, also, on Dickson v. United States, 125 Mass. 311, 28 Am.Rep. 230, where the court held valid a devise and bequest to the United States of America. In distinguishing the Fox case the court said that the case ‘proceeded upon the ground that the law of New York allowed real estate to be devised only to natural persons and to corporations established by the Legislature of that state.’ The court then said ‘The statutes of this Commonwealth, where the testator had his domicil, and part of his real estate lay, make no restriction as to who may be devises or legatees * * *.’ The California statute, as we have seen, contains definite restrictions.

The order appealed from is reversed.

GOODELL, Justice.

NOURSE, P. J., and GRIFFEN, J., pro tem., concur.

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