Opinion
Hearing Granted by Supreme Court Feb. 20, 1928.
Appeal from Superior Court, Los Angeles County; Frank R. Willis, Judge.
Petition by Hiram Lodge No. 18, Free and Accepted Masons, of Delaware, Ohio, and another, for the distribution of the estate of Gary Wirt, deceased, to which Charles H. Cox and others filed objections. From the decree of distribution, petitioners appeal. Decree reversed in part, with instructions.
COUNSEL
Harry K. Sargent, of Los Angeles, for appellants.
Ford, Johnson & Bourquin, of San Francisco, for respondents.
OPINION
COLLIER, Justice Pro tem.
Gary Wirt died, leaving a will, the clauses whereof that are here material are as follows:
"Item 2nd. All the residue of my estate both personal and real, of every kind and nature, wheresoever situate, which I may own or have a right to dispose of at the time of my decease, I give and devise and bequeath to Fred P. Hills, in trust however, for my brother Sam V. Wirt [here follow trust provisions], and at the death of my said brother, Sam V. Wirt, or if he should die before my decease, then all the residue of shall be equally divided between Hiram Lodge, Number 18, F. & A. M. of Delaware, Ohio, and Jackson Lodge, Number 146, F. & A. M. of Seymour, Indiana, share and share alike, said lodges shall place said place said (sic.) fund in a special funds (sic.) to be known as the Gary Wirt fund, and only the income of of (sic.) said funds shall be used for current expenses, and in case my brother shall live longer than I do then at his death I direct that said trustee shall [after paying certain expenses] distribute said fund as directed above, and shall pay an equal amount to each of said lodges as aforesaid, but in case that my brother shall die before my deceased then my executor shall, after paying my debts and expenses as aforesaid, distribute the residue of my estate equally between the above mentioned lodges as aforesaid."
From the above quotations it will be observed that the will was prepared by a novice, and not by an expert scrivener.
The brother, Sam V. Wirt, predeceased the testator. Upon the death of the latter the will was admitted to probate by the superior court of Los Angeles county.
Thereafter, and in due course of probate, the administrator filed his first and final account, and petitioned for distribution, showing that he had on hand $6,274.51 in cash and securities.
Thereupon respondents filed objections to distribution upon the ground that the bequests to the two Masonic lodges were void under article 20, § 9, of the Constitution of the state of California, which reads as follows:
"No perpetuities shall be allowed except for eleemosynary purposes."
In its decree of distribution, among other things, the court found that "the bequest to Hiram Lodge No. 18, Free and Accepted Masons, of Delaware, Ohio, and Jackson Lodge No. 146, Free and Accepted Masons, of Seymour, Ind., was void under the provisions of article 2 (evidently meaning article 20), § 9, of the Constitution of the state of California," and ordered distribution of the estate of the respondents. The two Masonic lodges appeal from said order.
A reading of the will "from its four corners" makes it certain that a perpetuity was intended by the testator. His first statement is that the residue of his estate should be equally divided between "the two Masonic lodges"; "said lodges shall place said fund in the special funds, *** and only the income of said funds shall be used for current expenses." The next preference to the lodges is in the phrase, "my trustees shall *** distribute said fund as directed above, and shall pay an equal amount to each of said lodges as aforesaid"; and finally directs his trustee to "distribute the residue of my estate equally between the above mentioned lodges as aforesaid. "
We think that by the use of the words "as aforesaid" the testator referred to the establishment of said "Gary Wirt fund," only the income whereof was to be used for current expenses.
The main question is thus presented: "Is such a perpetuity one for eleemosynary purposes?" This, in turn, offers two correlated questions: (a) Are the lodges receiving said bequests eleemosynary institutions? and (b) if they are, does the limiting of the expenditure of income to "current expenses" impair the eleemosynary character of the perpetuity so as to render it void within the provision of the Constitution?
The canons of construction in matters such as these are the following:
Courts look with favor upon all attempted charitable donations, and will endeavor to carry them into effect, if it can be done consistently with the rules of law. "A bequest intended for charity is not void, and there is no authority to construe it to be legally void, if it can possibly be made good. " Estate of Hinckley, 58 Cal. 457, 513; Estate of Willey, 128 Cal. 1, 12, 60 P. 471; Estate of Merchant, 143 Cal. 540, 77 P. 475; Estate of Dwyer, 159 Cal. 687, 115 P. 242; Estate of Peabody, 154 Cal. 178, 97 P. 184; Fay v. Howe, 136 Cal. 602, 69 P. 423; Estate of Goodfellow, 166 Cal. 412, 137 P. 12; Ould v. Washington Hospital, etc., 95 U.S. 303, 24 L.Ed. 450.
"The instruments creating them [charities] should be so construed as to give them effect, if possible, and to carry out the general intention of the donor, when clearly manifested, even if the particular form or manner pointed out by him cannot be followed." Estate of Upham, 127 Cal. 95, 59 P. 317.
What is an eleemosynary purpose? "The word ‘eleemosynary"’ in article 20, § 9, of the Constitution, "is synonymous with ‘charitable’ as the latter word is used and understood in treatises and decisions upon the subject of trusts." Estate of Sutro, 155 Cal. 727, 734, 102 P. 920, 922.
"‘A charity, in the legal sense, may be more fully defined as a gift to be applied, consistently with existing laws, for the benefit of an indefinite number of persons either by bringing their hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to establish themselves for life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government.’ This definition, as applied to charitable perpetuities, must be read with the opening phrase constantly in mind that the benefit is for ‘an indefinite number of persons,’ and not for any particular person or persons, and it must be for all persons falling within a described class indefinite in number." Estate of Sutro, 155 Cal. 727, 736, 102 P. 920, 923.
"Eleemosynary has come in the law to be interchangeable with the word ‘charitable.’ A charitable trust or a charity is a donation in trust for promoting the welfare of mankind at large, or of a community, or of some class forming a part of it, indefinite as to numbers and individuals. It may, but it need not, confer a gratuitous benefit upon the poor. It may, but it need not, look to the care of the sick or insane. It may, but it need not, seek to spread religion or piety. Schools and libraries, equally with asylums, hospitals, and religious institutions, are included within its scope. It is impossible to enumerate specifically all purposes for which an eleemosynary trust may be created. The difficulty is inherent in the subject-matter itself. With the progress of civilization new needs are developed, new vices spring up, new forms of human activity manifest themselves, any or all of which, for their advancement or suppression, may become the proper objects of an eleemosynary trust. As was said by this court in People v. Dashaway Ass’n, 84 Cal. 114, [24 P. 277, 12 L. R. A. 117]: ‘The enforcement of charitable uses cannot be limited to any narrow and stated formula. As has been well said, it must expand with the advancement of civilization and the daily increasing needs of men. New discoveries in science, new fields and opportunities for human action, the differing condition, character, and wants of communities and nations, change and enlarge the scope of charity, and where new necessities are created new charitable uses must be established. The underlying principle is the same; its application is as varying as the wants of humanity."’ People v. Cogswell, 113 Cal. 129, 138, 45 P. 270, 271 (35 L. R. A. 269). See, also, Fay v. Howe, 136 Cal. 600, 69 P. 423; Estate of Dol, 186 Cal. 65, 198 P. 1039; City of Petersburg v. Petersburg Benefit Assn., 78 Va. 431, 436; Ould v. Washington Hospital etc., supra.
Charity, particularly with reference to fraternal orders, has been defined as follows:
"*** It is a matter of common knowledge that the charity dispensed by fraternal orders and societies and other like charitable institutions does not consist alone of the material assistance, represented by dollars and cents, they give to the orphan, indigent poor, the sick and afflicted who may be in need of help, by furnishing them with food, clothing, shelter, and medical aid, but that they also bestow other kinds of charity which in many cases are just as essential and just as potent in their effect for doing good and in relieving distress as is the material assistance rendered by them. We refer to the charity which is the embodiment of sympathy and kindness; charity which causes
"‘Me to feel another’s woe,
To hide the fault I see,’
-and which comes of the spirit of brotherhood, good fellowship and benevolence generally found to exist in these fraternal orders and societies, and which actuates the members thereof to take an interest in the general welfare of each other, and which by words and acts of kindness and moral suasion, guides, cheers, and encourages those who, because of misfortune and trouble, have become discouraged and depressed in spirit, and who are thereby impelled and urged on to renewed effort. The uniting and blending of the two kinds of assistance mentioned, namely, the moral with the material, is charity in its highest and most perfect form.
"As suggested, it is a matter of common knowledge that it is the aim of fraternal orders generally to teach, foster, and encourage this kind of charity as one of their cardinal principles." Salt Lake Lodge No. 85, B. P. O. E., v. Groesbeck, 40 Utah, 1, 18, 120 P. 192, 197, (Ann. Cas. 1914C, 940).
A considerable factor in determining whether or not an institution is "charitable" or "eleemosynary" in character is whether or not it receives any kind of profit in connection with its work.
"The test which determines whether such an enterprise is charitable or otherwise is its purpose. If its purpose is to make profit, it is not a charitable enterprise. If it is to heal the sick and relieve the suffering, without hope or purpose of getting gain from its operation, it is charitable." Union P. Ry. Co. v. Artist, 9 C. C. A. 14, 18, 60 F. 365, 368 (23 L. R. A. 581).
"When the charity is public, the exclusion of all idea of private gain or profit is equivalent, in effect, to the force of ‘purely’ as applied to public charity in the Constitution." Gerke v. Purcell, 25 Ohio St. 229, 247.
And, in discussing a certain charitable trust, our Supreme Court states, among other qualities, to show its charitable character:
"Nothing is reserved for profit or gain." People v. Cogswell, 113 Cal. 139, 45 P. 270, 35 L. R. A. 269.
To the same effect see, also, Morrow v. Smith, 145 Iowa, 514, 124 N.W. 316, 318, 25 L. R. A. (N. S.) 384; Plattsmouth Lodge, F. & A. M., v. Cass Co., 79 Neb. 463, 113 N.W. 167, 170; Fitterer v. Crawford, 157 Mo. 51, 57 S.W. 532, 50 L. R. A. 191.
That some objects of the institution may not be "charitable" does not deprive that institution of its eleemosynary character, providing the main purpose is "charity." In discussing the character of the "Los Angeles Pioneer Society," and holding it to be a "charitable" society, our Supreme Court, in Estate of Dol, 186 Cal. 64, 67, 198 P. 1039, 1040, says:
"It may be urged that the articles contain no provision whereby any person not a member thereof may receive any benefit from the carrying out of its corporate purposes. This may be true as to the cultivation of social intercourse and friendship among its members, although as there is no limit as to the number of members, or as to the conditions of admission, the membership may embrace a large and indefinite portion of the public. But a reading of the article on the subject shows that the carrying out of the purposes defined will in themain benefit the general public as much as the members."
See, also, City of Petersburg v. Petersburg Benefit Ass’n, 78 Va. 431; Church M. E. South v. Hinton, 92 Tenn. 188, 21 S.W. 321, 19 L. R. A. 289.
That charity as hereinabove defined predominates in Masonry and in Masonic lodges has been held in numerous cases. In King v. Parker and others, 9 Cush. (63 Mass.) 71, 82, it is said:
"It appears by evidence, as well as by general notoriety, that a Masonic lodge is a voluntary association of persons, closely united by rules, usages, and ceremonies, maintaining a perpetual succession, by the admission of new members; and, whatever other objects they may have, one leading one is that of charity, supporting the poor and indigent members, their widows, and orphans. This object is essentially perpetual, for ‘the poor ye have always with you."’
To the same effect see Fitterer v. Crawford, supra; Morrow v. Smith, supra; Burdine v. Grand Lodge, 37 Ala. 478; Mason v. Zimmerman, 81 Kan. 891, 106 P. 1005.
Neither is a corporation or society shorn of its charitable or eleemosynary character because the relief from sickness, suffering, want, and woe which it extends is largely, if not entirely, confined to its members. The Supreme Court of Kentucky in Widows’ & Orphans’ Home of O. F. v. Commonwealth, 126 Ky. 386, 397, 103 S.W. 354, 358 (16 L. R. A. [N. S.] 829) says:
"The convention meant by the word ‘purely’ to describe the quality of the charity, rather than the means by which it is administered, that it should be wholly altruistic in the end to be attained, and that no private or selfish interest should be fostered under the guise of charity; but it was never meant that, because a charity was limited by its terms to objects belonging to a certain sect or fraternal order, or color or class, it was a private, and not a public, charity. The members of the convention were wise and practical, and knew that men, as a rule, administer their charity through the organization or organizations to which they belong. Thus, Catholics will naturally distribute their charity through the organization of the Catholic church; Presbyterians through those of the Presbyterian church; Masons through the organization of the Masonic order, etc., etc. But, while each is discharging for the state a particular and limited part of its duty to the objects of the public’s bounty, together they are fulfilling the state’s whole duty far more completely and efficiently than could be done by means of a system of involuntary taxation administered through the hands of hired officialism. The difference between these two systems-the one actuated by love, and the other serving for pay-is as marked as the difference between the ministrations of a mother at the bedside of her sick child and that of a hired nurse. If one fixes his eye narrowly on the work of only one of the various bodies and organizations engaged in relieving the necessities of misfortune, he might reach the conclusion that it was not a public charity, because limited (in theory, never in actuality) to the members of the particular order or body; but he would make the mistake of one who would conclude that, because a regiment of a battle line had a flag bearing a name or number different from the other flags in the line, it was not a part of the army as a whole, and was not engaged with the other regiments in the mutual purpose of resisting the common enemy. The charities of the various religious and fraternal organizations we are contemplating may seem, when viewed separately and with a narrow and atrabilious vision, to be too limited in their ministrations to be called public; but, when viewed as a whole, the compass of their good work is as wide as the circle of human suffering, and as universal as the love of the heart of man.
"Seeing, then, that the various charities, which the generous portion of the community administer through the separate organizations to which the donors belong, as a practical proposition cover the whole field of the state’s duty to her indigent and helpless citizens, and that they together contribute to the whole public burden, where would be the wisdom in discouraging such charity? And what good purpose can be subserved by indulging in a strained construction of a phrase in order to reach the conclusion that the members of the constitutional convention meant to throw away as useless the powerful aid which the state could otherwise enjoy in the contributions of charitable men? What good purpose is subserved in attaching the word ‘private’ to the charity of Catholics for Catholics, Presbyterians for Presbyterians, Masons for Masons, or Odd Fellows for Odd Fellows? Are the poor and helpless of these various bodies and organizations any less worthy, or any less a part of the public, because they are also members of the particular church or society to which they belong? Are not all charitable institutions necessarily limited to the relief of only a small part of the destitute public? Can any one institution administer to the wants of all? And, if this be true, is it necessary to brand as ‘private’ a charity which, by its terms, marks out a particular part of the public field in which it is to be administered? Who would say that an orphan asylum endowed for the benefit of colored children only was a private charity, or that an orphanage for destitute white children only was not public? And yet the operation of each would be exclusive of a large portion of the community. Who would say that a home for poor and aged men was a private charity, or a home for poor and aged women was not a public charity, although manifestly excluding, the one the female, and the other the male, indigent from participation in the bounty?" (Italics ours.)
See, also, Indianapolis v. Grand Master, etc., 25 Ind. 518, 522; City of Petersburg v. Petersburg Benefit Ass’n, supra; Hibernian Society v. Kelley, 28 Or. 173, 42 P. 3, 30 L. R. A. 167, 52 Am. St. Rep. 769; Burd Orphan Asylum v. School Dist., 90 Pa. 21; Estate of Lubin, 186 Cal. 326, 199 P. 15.
The Burd Case is in a sense overruled by City of Philadelphia v. Masonic Home, 160 Pa. 572, 28 A. 954, but the reasoning in Burd v. School District is so far superior to that in Philadelphia v. Masonic Home that we adopt it here without quoting it at length. Suffice it to say that it coincides with that in Widows’ & Orphans’ Home of O. F. v. Commonwealth, 126 Ky. 386, 103 S.W. 354, 16 L. R. A. (N. S.) 829. But even in City of Philadelphia v. Masonic Home, the court there says:
"The legal definition of the word ‘charity’ has been the subject of much discussion in the courts, especially in those of England, but its meaning here, discarding all technical sense, is ‘a gift to promote the welfare of others.’ The appellee clearly is a charity. It provides for and maintains in the ‘Masonic Home’ indigent, afflicted, and aged freemasons. This, too, from voluntary contributions, without charge to the beneficiaries, and with no profit either to the corporation or to its officers. Not one of the corporate officers receives a cent of compensation for administering its affairs. Such unselfishness excites the admiration and approval of all friends of humanity. Gen. Wagner, president of the home, testified: ‘The number of inmates at present is thirty. Their average age is 72 years. All are decrepit. If they could support themselves, they would not be admitted. The money to support them is contributed by different Masonic lodges, individuals, Masons, men and women. The receipts are always less than the expenses, and a deficit has to be made up at the end of the year. No one is benefited except the inmates. They are fed, clothed, and lodged during life, and buried at death, at the expense of the home.’ Of course, if this be not purely charity, nothing is. But is it a public charity?" (Italics ours.)
After lengthy reasoning, too narrow for us to follow, the court, with two justices dissenting, arrived at the conclusion that such an institution, although based on "such unselfishness" that it "excited the admiration and approval of all friends of humanity," was not a "purely public charity," within the meaning of the tax-exemption statutes. The reasoning and construction set forth in Widows’ & Orphans’ Home of O. F. v. Commonwealth, supra, far more nearly follows the canons of construction announced in the earlier part of this opinion.
Another of the tests to determine whether or not a society or corporation is of a charitable or eleemosynary character is whether or not it is "lessening the burdens of government." Estate of Sutro, 155 Cal. 727, 736, 102 P. 920.
In Molly Varnum Chapter, D. A. R., v. City of Lowell, 204 Mass. 487, 494, 90 N.E. 893, 895 (26 L. R. A. [N. S.] 707), it is said:
"The diffusion of knowledge, the relief of the poor, the fostering of love of country and of respect for our civil institutions, all tend to raise the standard and improve the quality of citizenship, and not only relieve the burdens of government but advance the public good. Donahugh’s Appeal, 86 Pa. 306; Ould v. Washington Hospital for Foundlings, 95 U.S. 303, 311, 24 L.Ed. 450. The gratuitous benefit thus conferred serves only charitable purposes and entitles the plaintiff to the statutory exemption."
The above case received approval of our Supreme Court in Estate of Dol, 186 Cal. 64, 66, 198 P. 1039. See, also, Widows’ & Orphans’ Home of O. F. v. Commonwealth, supra, where the court said:
"‘Without undertaking to be technically accurate, a "purely public charity" may be defined as one which discharges, in whole or in part, a duty which the commonwealth owes to its indigent and helpless citizens. Undoubtedly, it is the duty of the state to educate its poor children, and thus fit them for discharging the duties of citizenship; to care for the indigent, insane, its helpless orphans, and its poor who are sick and afflicted; and therefore any institution which, serving no selfish interest discharges, in whole or in part, any such duty, is a "purely public charity.""’
That the leading object of Masonry and of all Masonic lodges is charity as hereinabove defined is, in this jurisdiction, and throughout the United States, a matter of common everyday knowledge, and such fact is certain and indisputable, about which there is no reasonable question. That fact is as certain and as well known as are the general doctrines of any religious denomination in this jurisdiction. Hence this court may take judicial notice thereof, whether the trial court did or not. Varcoe v. Lee, 180 Cal. 338, 343, et seq., 181 P. 223, 225.
Other courts in the Union have taken judicial notice of the charitable character of Masonry and Masonic lodges:
"The society known as Free Masons has long existed in this country, and in almost or quite every part of it. The purpose and objects of the society have been made public in numerous books, periodicals, and public addresses. From all of these sources of information, and from the generally received and accredited judgment of the public, the sole purpose and object with which Masonic institutions acquire money and property, beyond their current expenses as a society (furniture, lights, fuel, stationery, and the like), are for the bestowal of reliefs and charities to the needy. In addition, the 3d and 4th sections of the act to incorporate Masonic lodges in the state of Alabama, tend to confirm the belief that the society is eleemosynary in its aims. Under these circumstances, we hold, that we will take judicial notice, that the grand and subordinate lodges of Free Masons within the state of Alabama constitute a charitable or eleemosynary corporation. " (Italics ours.) Burdine v. Grand Lodge of Alabama, supra.
"The order of Ancient, Free and Accepted Masons is an association of persons that has existed for several hundred years, and exists generally in all civilized countries. In the state of Kansas there are 379 local, or subordinate, lodges, organized under the supervision and direction of said Grand Lodge, and subject to its jurisdiction. The lodges of this state are independent and separate from those of any other state or county, except that all Masonic lodges are bound by certain ancient landmarks and principles, which are not subject to change by either a subordinate or grand lodge. The objects and purposes of the Masonic order and of the Masonic lodges of Kansas are to inculcate in their members the principles of morality, temperance, benevolence and charity, and teach them their duty to one another and to all mankind; to care for the sick and afflicted, to relieve the wants of the needy and destitute, and to promote the general good and welfare of their members and their families, or the widows and orphans of such members." Mason v. Zimmerman, 81 Kan. 799, 106 P. 1005.
Many courts of the United States have held, after a more or less extensive review of the authorities, that Masonry and Masonic lodges are charitable institutions.
"Our conclusion is that Masonic lodges are organized for charitable and benevolent purposes, with no incentive to private or corporate gain, but whose revenues, derived from whatever sources they may be, are applied to the payment of their current expenses, and the relief of their afflicted and needy members and their families; and, although their charity is restricted to such use, they are charitable institutions. " Fitterer v. Crawford, supra. See also, Mason v. Zimmerman, 81 Kan. 799, 106 P. 1005; Burdine v. Grand Lodge, supra; King v. Parker (Mass.) supra; Morrow v. Smith (Iowa) supra; Plattsmouth Lodge v. Cass Co. (Neb.) supra; State v. Board of Assessors, 34 La.Ann. 574; Duke v. Fuller, 9 N.H. 536, 32 Am. Dec. 392; Masonic Education, etc., v. Boston, 201 Mass. 320, 87 N.E. 602; Mayor, etc., v. Solomon’s Lodge, 53 Ga. 93; Mayor, etc., v. Grand Lodge, 60 Md. 280; State v. Grand Lodge, 2 S.C. 499; Grand Lodge v. New Orleans, 44 La.Ann. 659, 11 So. 148, 153.
Even in tax-exemption cases, where relief has been denied for reasons appearing in the opinions, nevertheless the charitable nature of Masonry and Masonic lodges has been recognized. City of Philadelphia v. Masonic Home, supra; City of Newport v. Masonic Temple Ass’n, 108 Ky. 333, 56 S.W. 405, 49 L. R. A. 252; Bangor v. Rising Virtue Lodge, 73 Me. 428, 40 Am. Rep. 369. (But later the same exemptions denied to Rising Virtue Masonic Lodge were granted to an Odd Fellows lodge.) Curtis v. Androscoggin Lodge No. 24, I. O. O. F., 99 Me. 356, 59 A. 518; Morning Star Lodge v. Hayslip, 23 Ohio St. 144; Fitterer v. Crawford, supra; Morris v. Lone Star Lodge, 68 Tex. 698, 5 S.W. 519. And our appellate court has held that a Masonic lodge was a charitable institution. Kauffman v. Foster, 3 Cal.App. 741, 86 P. 1108. And our Supreme Court has held that a Masonic lodge could act as trustee for funds left to it for use of widows and orphans of its members. Estate of Wiley, 138 Cal. 301, 71 P. 441.
In view of the foregoing, we hold that a Masonic lodge is a charitable institution or society, and that the bequests in this case were for "eleemosynary purposes," unless that purpose is destroyed by the provision that the income of the fund was to be used for current expenses of the lodges. We do not think that such was its effect. Every charitable society, corporation, or institution must have funds with which to defray its expenses before it can legitimately expend anything for charity. How can the charitable purpose of the society or institution be destroyed because some one assists in defraying its expenses? Can it be said that money paid for expenses of a charitable institution or society is not expended for charitable or eleemosynary purposes? We think not. Suppose the gift had been in a lump sum without any "strings," and the lodges should expend a portion thereof for expenses-could it be said that such payments were not for eleemosynary purposes? Again we think not. A clause very similar to the one here in question was before our Supreme Court in Estate of Peabody, 154 Cal. 173, 176, 97 P. 184. It is as follows (italics by the court):
"‘Ninthly. All the residue of my property, now in bonds, a list of which will be enclosed with this document, together with real estate which may be sold at any time it is my wish to have invested (after paying all debts) as a permanent fund, allowing the income only to be used in aiding to meet the expenses of "The House of Rest.""’
The clause (with others) was upheld.
In The Estate of Royer, 123 Cal. 615, 56 P. 461, 44 L. R. A. 364, the gift was to the University of California, "for the sole purpose of founding a professorship," thus entailing an expense on the university in the form of the professor’s salary, yet the gift was upheld as a charity.
In Estate of Coleman, 167 Cal. 212, 138 P. 992, Ann. Cas. 1915C, 682, a fund was left "to be used in erecting a suitable fountain for the benefit of thirsty animals and birds," and it was upheld, although there would be considerable expense in erecting the fountain.
In Estate of Dwyer, 159 Cal. 680, 115 P. 242, a fund was left to "found and maintain" (i. e., "to keep up, to support"-Standard Dictionary) "a home for aged persons."
In People v. Cogswell, 113 Cal. 129, 138, 45 P. 270, 272 (35 L. R. A. 269), the trust provided for the erection and maintenance of a polytechnic college, "the salaries of the professors, teachers and instructors are to be paid out of the trust funds. Suitable college buildings are to be erected." The trust was upheld, the Supreme Court saying:
"The objects and purposes of the present trust are purely charitable. The mode of effectuating the charity by the erection and maintenance of a polytechnic college is clearly set forth. The salaries of the professors, teachers, and instructors are to be paid out of the trust funds. Suitable college buildings are to be provided. Tuition is to be absolutely free so long as the resources of the trust will permit, and when a tuition fee is charged it is only to aid in maintaining the institution. Nothing is reserved for profit or gain." In Fitterer v. Crawford (Mo.) supra, Masonic lodges were held to be charitable institutions, although it was said:
"Revenues, derived from whatever sources they may be, are applied to the payment of their current expenses, and the relief of their afflicted," etc.
In Burdine v. Grand Lodge, etc. (Ala.) supra, it was stated:
"The sole purpose and object with which Masonic institutions acquire money and property, beyond their current expenses as a society *** are for the bestowal of reliefs and charities," etc.,
-and it was held that they were charitable, or eleemosynary, institutions.
In City of Petersburg v. Petersburg Benefit Ass’n, supra, the court said:
"Its revenues *** are wholly applied to the payment of its current expenses, the assistance of its indigent members, and the families of such" members "as may have died in needy circumstances. These are charitable purposes. "
Therefore we hold that the bequests to Hiram Lodge No. 18, Free and Accepted Masons of Delaware, Ohio, and of Jackson Lodge No. 146, Free and Accepted Masons of Seymour, Ind., are for eleemosynary purposes, and are not void under article 20, § 9, of the California Constitution.
The decree of distribution, in so far as it declares said bequests void, is reversed, with instructions to the trial court to distribute said estate in accordance with the will of the deceased.
We concur: WORKS, P. J.; THOMPSON, J.