Metropolitan News-Enterprise


Thursday, March 20, 2008


Page 15



MacDonald Represents Church in Defending Bequests




J. Wiseman MacDonald in 1907 teamed with former Los Angeles County District Attorney Henry C. Dillon in seeking to convince the California Supreme Court that a bequest to the bishop of the Roman Catholic Church’s Diocese of Monterey and Los Angeles was neither “charitable” nor founded on superstition. The effort came at a time when, odd as this now seems, charitable bequests were frowned upon by the law whenever the testator had living relatives.

The decedent, Patrick Lennon, left $3,500 “to have the same amount of masses celebrated as soon as possible for my soul.” (The sum was roughly $80,000 in terms of today’s dollar.)

At issue was the applicability of Civil Code §1313, enacted in 1874, which restricted charitable bequests to one third of the estate. (If the bequest had been made within 30 days of the testator’s death—which wasn’t the case here—it would have been void, under the statute.)

Lennon’s kin clamored that the bequest exceeded one third of the estate and was therefore unlawful. Kern Superior Court Judge J. W. Mahon rejected the challenge.

The California Supreme Court’s unanimous opinion, by Justice Frederick W. Henshaw, explains the purpose behind §1313:

“It is that a man’s fears or superstition, or his death-bed hope of purchasing a blissful immortality shall not be allowed to influence the disposition which he may thus make of his property, to the injury of his heirs. The law, therefore, limits the time within which such a testamentary disposition may be made, and also limits the value and amount of such disposition.”

Inasmuch as the bequest was for the purpose of securing the “saying of masses for the testator’s soul, ” it did not seek a benefit to the public but, rather, was “for the benefit alone of the testator,” Henshaw says in concluding that there was no charitable purpose.

The opinion goes on to say:

“In England, masses for the dead are called ‘a superstitious use’ and are forbidden by statute….But in this state and in the states of this union generally, there is no statute designating such bequests superstitious uses, and such bequests are not prohibited as superstitious if they are for the observance of any ceremonial, the efficiency of which is recognized by the church of which the donor is a member.”

So, the trial court’s decision in favor of the church was affirmed.

In a 1923 case before the Court of Appeal, MacDonald sought a reversal of a decision that had gone against the church at the trial-court level, that case also centering on §1313. The judge was James Rives of the Los Angeles Superior Court who, like Dillon, was a former district attorney.

The will of the decedent, Catherine Fitzgerald, provided:

“I give, devise and bequeath to the Roman Catholic Bishop of Monterey and Los Angeles, a corporation sole, all the rest, residue and remainder of my estate, whether real, personal or mixed, and wheresoever situated.”

The problem was that Fitzgerald had made specific charitable bequests in the amount of $11,300; one-third of the estate was valued at $13,324.36; the residue was worth $12,693.07. Rives reckoned that only $2,024.36 of the residue could go to the church, in order to stay within the one-third limit.

Rives’ math was incontestable. Moreover, MacDonald could not come up with any case in point showing that the judge’s legal conclusion was wrong. He argued by analogy from other cases and sought to draw support from other statutes…but not convincingly.

“A gift to a church is a charitable one, for it is well settled that a Christian church lawfully existing is a charity,” the opinion by Presiding Justice Nathanial P. Conrey (later a member of the California Supreme Court) says. “A gift to a church without restrictions as to the use to be made of the property is a gift to be applied for the promotion of public worship and of religious instruction, which must necessarily influence other than church members, and has all the elements of a public charity.”

Sec. 1313 in 1931 became Probate Code §41 which was repealed in 1971, effective March 4, 1972.

In 1932, MacDonald easily prevailed in the appeal by a property owner from the denial of a temporary injunction against the bishop of the Diocese of Los Angeles and San Diego. The plaintiff/appellant, James H. Hunter, owned the house at the southwest corner of Eighth and Cochran Streets; the church owned the lot at the northwest corner, and had commenced construction there of a two-story school building.

Hunter tried to halt the construction based on a restriction in the deed for benefit of “adjoining” lots limiting structures to ones used as residences. Since Hunter’s lot was on the south side of Eighth Street and the church’s property was on the north side of the street, they weren’t “adjoining,” the appeals court held.

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