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District Court of Appeal, Second District, Division 3, California.

IN RE: the ESTATE of Jack ROBBINS, Deceased. Irvine ROBBINS, Petitioner, Contestant, and Appellant, v. Lee MISHKIN, Respondent, Alan Cranston, State Controller of the State of California, Respondent. *

Civ. 25273.

Decided: October 17, 1961

Brock, Fleishman & Rykoff and Hugh R. Manes, Hollywood, for appellant. Pacht, Ross, Warne & Bernhard, Clore Warne, Harvey M. Grossman and Ira E. Bilson, Los Angeles, for respondent Lee Mishkin.

The principal question presented on this appeal is whether certain provisions of a will, under which the proceeds of the sale of a portion of the testator's property were to be held in trust, are valid. Therein the purpose of the trust is stated to be as follows: ‘The income of said trust, or so much of the principal as in the sole discretion of the Trustees may by deemed desirable or advisable, is to be used to provide for the care, comfort, support, medical attention, education, sustenance, maintenance or custody of such minor Negro child or children, whose father or mother, or both, have been incarcerated, imprisoned, detained or committed in any federal, state, county or local prison or penitentiary, as a result of the conviction of a crime or misdemeanor of a political nature.’ Upon the presentation of such question to the superior court pursuant to the petition of the administrator with the will annexed for determination of heirship and for instructions and the claim of interest of Lee Mishkin hereinafter described, it was adjudged that such intended trust was ‘invalid both as a charitable and a private trust’ and that the property involved should ‘pass as intestate property’ to certain persons as heirs at law.

The testator devoted a substantial portion of the body of his will to a clarification of what was intended to be accomplished by means of such trust and to an exposition of the reasons which motivated his action. Such portions are set forth in the margin of this opinion.1

A valid charitable trust may exist where the accomplishment of its purposes involves a change in existing law to be brought about by resort to lawful means. See 4 Scott on Trusts (2d ed.), § 374.4, p. 2A Bogert on Trusts, § 378, pp. 168–170. In Collier v. Lindley, 203 Cal. 641, at pages 650–651, 266 P. 526, at page 529, the Supreme Court said: ‘The trend of modern authority has been toward the upholding of trusts which have for their object the creation of a more enlightened public opinion, with a consequent change in laws having to do with human relations and rights * * *. Following a review of the foregoing cases the court says [in Taylor v. Hoag, 273 Pa. 194, 116 A. 826, 21 A.L.R. 946]: ‘We are led to conclude that a trust for a public charity is not invalid merely because it contemplates the procuring of such changes in existing laws as the donor deems beneficial to the people in general or to a class for whose benefit the trust is created. To hold that a change in a law is in effect an attempt to violate that law would discourage improvement in legislation and tend to compel us to continue indefinitely to live under laws designed for an entirely different state of society. Such view is opposed to every principle of our government based on the theory that it is a government ‘of the people, by the people and for the people’, and fails to recognize the right of those who make the laws to change them at their pleasure when circumstances seem to require. With the wisdom of the proposed change the courts are not concerned.' The reasoning of the foregoing decision, while it is referable more especially to proposed reforms in legislation, is equally applicable to such social and economic changes as would in the opinion of the donors tend to bring about a more harmonious relationship between employers and employees, or ameliorate conditions among the so-called ‘working classes,’ or achieve a more equitable distribution of the fruits of production, or improve the status and condition of any particular race or class of our citizenship or population.' See also Estate of Murphey, 7 Cal.2d 712, 715, 62 P.2d 374; cf. Estate of Mealy, 91 Cal.App.2d 371, 375, 204 P.2d 971.

But a trust cannot be recognized as valid where its purpose is illegal. In the Restatement of Trusts is found the following pertinent statement: ‘A trust which tends to induce a breach of the criminal law is invalid. Thus, a trust of property to be applied to the payment of fines of persons convicted of criminal offenses * * * is invalid.’ 2 Restatement, Second, Trusts § 377, comment b. Professor Scott states in his treatise: ‘A trust cannot be created for a purpose which is illegal. The purpose is illegal if the trust property is to be used for an object which is in violation of the criminal law, or if the trust tends to induce the commission of crime, of if the accomplishment of the purpose is otherwise against public policy. Questions of public policy are not fixed and unchanging, but vary from time to time and from place to place. A trust fails for illegality if the accomplishment of the purposes of the trust is regarded as against public policy in the community in which the trust is created and at the time when it is created. Where a policy is articulated in a statute making certain conduct a criminal offense, then, of course, a trust is illegal if its performance involves such criminal conduct, or if it tends to encourage such conduct. Thus, in an early English case a bequest to trustees ‘to make seats for poor people to beg in by the highway’ was held invalid since such begging was a criminal offense.

‘A trust is illegal, even if it does not involve the performance of an illegal act by the trustees, if the natural result of the performance of the trust would be to induce the commission of crime. Thus a bequest to purchase the release of persons committed to prison for nonpayment of fines under the game laws was held illegal.’ 4 Scott on Trusts (2d ed.), § 377.

The purpose of the trust now before the court is not to achieve a change in the law by lawful and orderly means. The provisions in question embody a condonation of violations of the existing law relating to offenses of a particular nature and establish a means of rewarding members of a defined class of convicted persons by the furnishing of aid to their children. The tendency of such a trust, if permitted to be performed, to foster disrespect for the law and, at least in some instances, to encourage the violation thereof is evident. That it cannot be held to be a valid charitable trust is manifest.

Some guidance with respect to the applicability of the doctrine of cy pres in such a case is found in the following comment in the Restatement of Trusts: ‘A disposition for charitable purposes may fail, in whole or in part, either at the outset or subsequently, because the purposes or some of them are or become illegal. In such a case the doctrine of cy pres is applicable unless the settlor manifested an intention that the property should be applied solely to the purpose which is or has become illegal.’ 2 Restatement, Second, Trusts § 399, comment n; cf. In re Weeks' Estate, 154 Kan. 103, 114 P.2d 857, 860; see 2A Bogert on Trusts, § 438, p. 370. In any event, the doctrine of cy pres can be applied only where a general charitable purpose is apparent. ‘It is also a prerequisite to the application of the doctrine that the court can see in the instrument of trust a general charitable purpose of such a kind that the court can satisfy itself that some other object can be found, answering in a reasonable degree and most nearly consonant to such purpose, since where it appears that the gift was for a particular purpose only, and there was no general charitable intention, the court cannot by construction apply the gift cy pres.’ 14 C.J.S. Charities § 52, p. 516; see also O'Hara v. Grand Lodge I. O. G. T., 213 Cal. 131, 140–141, 2 P.2d 21; Estate of Faulkner, 128 Cal.App.2d 575, 579–580, 275 P.2d 818; 10 Cal.Jur.2d Charities, § 50; Anno., 74 A.L.R. 671. No general charitable intent is disclosed by the testator's language in the present case. It cannot be said that there was a general charitable purpose to aid Negro persons or to help Hegro children. The illegality discussed hereinabove permeates the entire purpose of the testator.

Lee Mishkin, who is designated as the respondent on this appeal, is not mentioned in the will. The will contains no residuary clause. Upon the filing of the petition of the administrator with the will annexed hereinabove mentioned, Mr. Mishkin filed a statement setting forth his claim of an interest in the estate as an heir at law; such claim was based upon the alleged invalidity of the trust. It is the contention of the administrator that Mr. Mishkin has ‘no standing to claim the benefits of testator's estate’ because of the following provision of the will: ‘Should any beneficiary named hereunder, or should any beneficiary per stirpes, file, or cause to be filed any proceedings in any court to set aside this will, or have the same declared invalid, or any portion thereof, for any reason whatsoever, or attempt to invalidate or render null and void any bequest made hereunder, and in particular to set aside or render invalid and null and void such portion of the will creating the aforesaid trust for the uses and purposes herein described, then and in either of such events, the bequest made to such contending beneficiary shall lapse, and the share he or she would have received hereunder shall * * * become a part of said trust estate and be used and disbursed for the uses and purposes of said trust, as hereinbefore indicated.’ It is obvious that the contention of the administrator lacks merit because Mr. Mishkin is not a beneficiary named in the will. Under the order upon which the present appeal is based, Mr. Mishkin takes as an heir a portion of the estate as to which no valid disposition is made by the will.

In view of the conclusions reached herein, there is no other contention made by the administrator on this appeal which requires discussion.

The attempted appeal from ‘the Order denying Motion for New Trial and for Order Vacating Judgment’ is dismissed. See Estate of Smith, 175 Cal.App.2d 803, 805, 1 Cal.Rptr. 46. The order designated as ‘Order Determining Interest in Estate' is affirmed.


1.  ‘In order to clarify my intention and make clear to my Trustees what I mean or intend to be meant by crimes or misdemeanor of a political nature, the following examples are offered for the guidance of my Trustees: ‘1. The prosecution, conviction and incarceration resulting from a purported violation of any federal, state or local statute, ordinance or regulation, seeking to proscribe, limit, abolish, enjoin or regulate the teaching, advising, adopting, advocating or implementing any political, geopolitical, or social-political doctrine, thesis, theory or philosphy, or speaking or writing in support thereof. I cite the Smith Act of the Federal Government and the prosecutions resulting thereunder as an example of this paragraph. ‘2. The prosecution, conviction and incarceration resulting from any contempt citation arising out of the refusal to answer any question or questions concerning the religious, social, economic or political opinions, beliefs, persuasions or affiliations, past and present, as may be propounded by any federal, state or local committee or sub-committee, or by any legislative committee of any state or municipality or of the Congress of the United States. I cite the appearances before the Un-American Activities Committee or the Internal Securities Committee of the United States Congress and subsequent prosecutions flowing therefrom as appropriate examples of this paragraph. ‘3. The prosecution, conviction and incarceration resulting from the refusal to execute any affidavit, certification or other statement, whether under oath or not under oath, requiring [sic] into the political affiliations, beliefs or association of the affiant; or the prosecution, conviction or incarceration which may result from the execution of a purported false statement, affidavit or certification as to the past or present political affiliations, beliefs or associations of the affiant. I cite the prosecutions under the non-Communist affidavit of the Taft-Hartley Act, or the prosecutions flowing from the McCarron-Walters Immigration Act, or the prosecutions and proceedings filed under the so-called Broyle's Bill of the State of Illinois, or prosecutions pursued by the Un-American Activities Committees of the various states as appropriate examples of this paragraph. ‘4. The prosecution, conviction and incarceration resulting from any activity in the organization, or assisting in the organization, of any trade union movement; or from the violation of any injunction of any court, restraining, enjoining or limiting in any way the activities of any union of working men and women in the United State [sic], or restricting and limiting the right to collectively bargain or go out on strike. ‘The above examples are cited for illustration purposes only, so as to enable and assist my said Trustees to determine what, in their own collective opinion, shall constitute a crime or misdemeanor of a political nature, in accordance with the uses and purposes of this trust. It is my intention, however, and I do by these presents vest in my said Trustees the full and complete power and authority to determine according to their sole and best judgment what is now, or what in the future may constitute, conviction of a crime or misdemeanor of a political nature. I am aware and cognizant that the law is an ambulatory institution and accordingly is subject to constant change. I anticipate that subsequent to the execution of these presents or subsequent to the date of my demise, laws, statutes and regulations, other than those presently in full force and effect, may be adopted by the Congress of the United States or by the respective legislatures of the several states, which will or may be calculated to limit, abolish or circumscribe the field of activity in unorthodox or unpopular political or economic causes or philosophies; and that people will be arrested, convicted and imprisoned as a result therefrom. Accordingly, and with full cognizance of this eventuality, I hereby endow by said Trustees, in their sole discretion and in accordance with their best collective judgment, to determine who shall receive the benefits of this trust estate. My only stipulation to my said Trustees is that the recipients be the minor Negro children of such defendants. * * * ‘I am aware of the unusual and unorthodox provisions in this testament generally, and particularly with regard to the creation of the trust estate, and the purposes and uses for which it is created. Unorthodoxy or lack of conformity have never been a deterrent or governing factors in my life. They shall play no governing or deterring role in my death or in the disposition of my estate after death. Nevertheless, some small word or mention should be made by way of explaining the reasons and basis for the creation of the trust estate set forth herein and created hereby. ‘I have always believed in the full, complete and unabridged freedom of expression in a democratic society, including (but not limited to) freedom to write, freedom to espouse and freedom to advocate. To limit these freedoms to the majority, or confine these freedoms to the protagonists of the orthodox or popular, is to negate or abolish the whole democratic concept of freedom of expression; for in the final analysis, the majority, the orthodox and the conformists have no need for this legal immunity or protection—they already have it. It is the minority, the unpopular, the advocate of the unorthodox who requires and who must have the unabridged and inalienable right to differ and be heard. ‘In my lifetime I have, from time to time, been associated and affiliated with causes, compaigns [sic], beliefs and organizations advocating or espousing unorthodox or unpopular concepts, and I have lived to see many of these concepts and philosophies accepted and heralded many years later as part of the social, political and economic progress of our society, fully accepted and recognized as natural and respectable concomitants of the democratic processes. Yet during the early struggles on behalf of these same causes or beliefs, men and women were persecuted, ostracized and sometimes jailed, and their families left destitute and devoid of all means of support and maintenance. I have learned from a long line of such experiences that there are occasions when to differ or to dissent may well place one's own security and the security of one's family in jeopardy. However, I have also learned that irrespective of this jeopardy, certain brave and intrepid men and women will always insist on being heard, their personal security notwithstanding. ‘It is because I wish to preserve the right to dissent, the right to differ and to be different, that I have created the trust estate set up in this will. It is my last contribution to a more democratic way of life for all people. ‘The right to disagree, the right to dissent, the right to be different, these are warp and woof of the fabric of democracy, they are the fertilizers that feed and nurture the tree of liberty and freedom.’

FORD, Justice.

SHINN, P. J., and VALLEÉ, J., concur.