CHARITIES-STATUTORY RESTRICTIONS ON TESTAMENTARY DISPOSITIONS TO CHARITY-INTERPRETATION OF CALIFORNIA STATUTE

Testatrix, domiciled in California, devised her residuary estate to the Eastern Star Lodge, expressly disinheriting her heirs. A further clause provided, Any portion of my estate which shall be held to have been disposed of in violation of section 41 of the Probate Code shall be distributed to my friend, Eleanor Mott. Section 41 provides that charitable gifts made by a testator, survived by certain designated relatives, including nephews and nieces, who, under the will, or the laws of succession, would otherwise have taken the property so bequeathed or devised, would be invalid unless executed at least thirty days prior to the testator\u27s death, and that property bequeathed contrary to these provisions should go to the relatives of the statutory class, if and to the extent that they would otherwise have taken said property as aforesaid but for such. devises and legacies and that otherwise the testator\u27s estate shall\u27 go in accordance with his will and such devises and legacies shall be unaffected. A final clause, an amendment of 1943, directs that nothing in the statute should be so construed as to vest the property in anyone not a relative, or in any such relative, unless and then only to the extent that such relative takes the same under a substitutional or residuary bequest or devise in the will or under the laws of succession because of other effective disposition in the will. Within thirty days of the execution of the will testatrix died, leaving as heirs a half-brother and nephews and nieces. The lower court found the charitable gift invalid and awarded the residue to the substitutional legatee. Held, on appeal, that the gift to charity was valid. The heirs were precluded from taking under the will, being named neither as substitutional nor residuary legatees; nor could they take under the laws of succession, since intestacy was effectively prevented by the inclusion of a substitutional legatee. However, this legatee, being a non-relative, was expressly prohibited from taking by the statute. Haines\u27 Estate, (Cal. 1946) 173 P. (2d) 693