Estate of Wirt

At the time this matter was first presented to the superior court, upon the petition of Hiram and Jackson lodges, praying distribution to them of the residue of the estate of Gary Wirt, the heirs at law of said deceased appeared and filed their contest and objection to such distribution, alleging as the sole ground of such contest “that the bequest in the will of said deceased was and is void under the provisions of article XX, section 9, of the Constitution of the state of California”. The trial court heard the contest and decided that the bequest to the petitioning lodges was void under the provisions of the article of the state Constitution just cited, and thereupon made its order and decree for the distribution of the residue of the estate to the heirs at law. From this decree of distribution the lodges appealed. Upon the final presentation of this matter upon that appeal to the Supreme Court, counsel for the appellants presented an application purporting to be made under section 956a of the Code of Civil Procedure for leave to produce evidence before the Supreme Court that said lodges were, in fact, charitable or eleemosynary institutions within the intent and meaning of the…

I concur in the judgment. Section 9 of article XX of the Constitution, on which this appeal rests, reads as follows: “No perpetuities shall be allowed except for eleemosynary purposes.” The will provides that the residue of the estate shall be equally divided between the two lodges, and that “said lodges shall place said -fund in a special funds to be known as the Gary Wirt fund, and only the income of said funds shall be used for current expenses”.

There is not to be found, in these terms of the will, any attempted creation of a perpetuity. The title of the legatees vests immediately. “The rule against perpetuities, engrafted upon our system by the Constitution, relates only to future interests in property, the vesting of which is to be postponed beyond the allotted time.” (Estate of McCray, 204 Cal. 399, 406 [ 268 Pac. 647, 650 ].) For the foregoing reasons, and entirely apart from the charitable or other characteristics of the respondent legatees, I think that the appeal is without merit.