IN RE: BUNN'S ESTATE.

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District Court of Appeal, Second District, Division 1, California.

IN RE: BUNN'S ESTATE.

Civ. 16705.

Decided: December 23, 1948

McLaughlin, McGinley & Hanson, of Los Angeles, for appellant. Lawrence Phillips, of Los Angeles, for respondent, Marguerite Bunn Bunnell. William N. Parker, of Pasadena, and Fleming & Boyce-Smith, of Los Angeles, for respondents, Fred Woodworth, and others.

This is an appeal from a ‘Decree Determining Heirship’.

The notice of appeal recites in part the following: ‘You, and each of you, will please take notice that Bank of America National Trust and Savings Association, the Executor named in the Will of decedent, and the party asserting the right to act as Trustee under such Will, does hereby appeal to the Supreme Court of the State of California from that certain ‘Decree Determining Heirship’ made on the 10th day of June, 1948 * * *'.

The pertinent facts as recited in appellant's brief are as follows:

‘Sallie H. Bunn died in Los Angeles County, on February 3, 1947, leaving no lineal descendants or ascentants. Her husband, Harry C. Bunn, died soon after, on March 12, 1947.

‘She left a holographic will of four pages, date ‘June, 1943,’ together with three codicils, dated respectively ‘Jan. 1944,’ and ‘Nov. 10, 1944’ and ‘Nov. 10, 1944’. These were enclosed together in an envelope endorsed, ‘I want this given to Bank of America at 7th and Broadway * * * My Will. Sallie H. Bunn.’ All four documents were admitted to probate on April 11, 1947, and no question is involved as to the propriety of doing this.

‘Since this appeal involves the validity of a trust for charity, it is important to note the language of these documents.

‘On Page 3 of the will, there is the following provision: ‘At Harry's death I want everything I have sold and given to a worthy charity, selected by my executors.’ On page 4, the Bank of America is named as ‘executors.’ It is conceded that the reference to Harry is to her husband.

‘In the codicil dated ‘Jan. 1944,’ the following provision appears: ‘As I have already stipulated, I want everything at Harry's death sold and given to a worthy charity.’

‘One of the codicils, dated ‘Nov. 10, 1944,’ contains the following provision: ‘I want my silver given to my nieces, & what is left given to charity by my Executors * * *.’

‘The above are the only provisions that appear material to the determination of the questions involved on this appeal.

‘Bank of America National Trust and Savings Association, hereinafter referred to as ‘appellant,’ was appointed and qualified as Executor on April 11, 1947.'

Appellant's brief continues,

‘The trial court concluded that there was no valid trust for charity and decreed that one-half of the estate should be distributed to Marguerite Bunn Bunnell, as Administratrix of the Estate of Harry C. Bunn, the deceased husband, and that the remaining one-half be distributed among the nephews, nieces, grandnephews and grandnieces of Sallie H. Bunn. No question is involved as to the amounts allocated to any of these, the only question being whether they should have received anything. It was conceded that the estate was the separate property of Sallie H. Bunn, and that the decree was not predicated upon any contention that any part of it was community property.

‘No question is involved regarding the validity of any specific bequests contained in the will or codicils or as to the decree distributing any portion of the estate to such specific legatees. It is only the disposition of the residue that is involved on this appeal.’

‘The principal question,’ as stated by appellant is, ‘whether the will and codicil contained a valid bequest to charity or whether it was void as being too vague as to the particular charity. Appellant contends that it did create a valid trust, and that the distribution to the heirs and to the husband's administratrix was therefore void.

‘Appellant also contends that the will showed a clear intent that it should act as trustee in administering the trust of such residue. Furthermore, even in the absence of evidencing such intent, it would have been proper for the court to appoint appellant as such trustee. This is founded upon the principle that equity will not permit a trust to fail for want of a trustee but will name one.

‘Closely akin to this last question is whether appellant is entitled to appeal.’

Respondents submit the questions involved as follows:

‘I. Is the executor entitled to appeal from a decree determining who are the persons to whom distribution should be made?

‘II. Did the decedent's will and codicils create a valid trust or make any valid gift to charity of the residue of her estate?’

The court's determination that the will created no trust is well supported by authority. That the term ‘charity’ is extremely comprehensive there can be no question and this is especially true when used without indication or limitation. It has been variously defined or described in the authorities, for example in Estate of Lennon, 152 Cal. 327, 92 P. 870, 871, 125 Am.St.Rep. 58, 14 Ann.Cas. 1024, appears the following:

‘A ‘charitable trust’ is defined to be a gift for the benefit of an undefinite number of persons, either by bringing their hearts and minds under the influence of educations or religion, by relieving their bodies of disease, suffering, or constraint, by assisting to establish themselves for life, by erecting or maintaining public buildings, or in order ways lessening the burdens or making better the condition of the general public, or some class of the general public, indefinite as to names and numbers.'

The foregoing was cited in Estate of Coleman, 167 Cal. 212, 138 P. 992, Ann.Cas.1915C, 682, as well as in 5 Cal.Jur. page 3. For additional reference on the same subject, see Restatement of the Law of Trusts, Volume 2, section 368 and 10 Amer.Jur. 622.

Section 2221 of the Civil Code provides:

‘Subject to the provisions of section eight hundred and fifty-two, a voluntary trust is created, as to the trustor and beneficiary, by any words or acts of the trustor, indicating with reasonable certainty: 1. An intention on the part of the trustor to create a trust, and, 2. The subject, purpose and beneficiary of the trust’ (Emphasis included.) It is true that the courts have been liberal for the purpose of effecting the intent of the testator but such liberality can not go beyond reason. It is well settled that the will must contain at least a guiding word as an aid to its interpretation when any degree of uncertainty exists.

As pointed out by respondent in substance, the will directs a bequest to an undesignated charity ‘A charity to be selected by the executor’. The power and authority to dispose of property by will is not disputed. An attempt however to delegate such power and authority to another by will is quite another matter. And, as argued by respondent, ‘How is a bank—a soulless business corporation—qualified to select a single charitable beneficiary from among the thousands operating in Los Angeles and California, to say nothing of the United States or the world. It is for the testatrix to make the selection herself and the selection cannot be delegated, particularly to a banking corporation. The Bank of America is not called upon here to administer a trust created by the testatrix; but its counsel on this appeal argue that it has the right and power to create one for the testatrix. The law, however, ordains that only the testatrix can create a trust or select the object of a charitable bequest.’ (Emphasis included.)

In Estate of Ralston, 1 Cal.2d 724, 37 P.2d 76, 77, 96 A.L.R. 953, the rule is stated as follows:

‘It is essential to the validity of a trust, whether express or precatory, that the language employed definitely indicate an intention to create a trust, that the subject-matter thereof be certain, and that the object or persons intended to have the benefit thereof be certain. The authorities are legion to this effect. The ‘trust’ here involved is defective and invalid because of its complete failure to indicate either the object or the persons to benefit thereby.'

The trial court's conclusion that the will in question created no valid trust nor made a valid gift to charity is supported by the facts and the law.

With regard to the question as to ‘whether appellant is entitled to appeal’ appellant's position is based on the contention that the bank as ‘The executor named in the will of decedent’, is not appealing; that appellant is ‘the party asserting the right to act as trustee under the will.’ In other words, appellant's right to appeal is based on the mere assertion of another right, to-wit, the right to act as trustee.

The basic issue having been disposed of, the determination of the latter question is unnecessary.

The decree appealed from is affirmed.

DORAN, Justice.

YORK, P. J., and WHITE, J., concur.