Estate of Ward

Appellant, the next of kin of the deceased, appeals from the decree of final distribution in the above-entitled estate.

By said decree the estate was distributed in accordance with the provisions of the will and codicils of the deceased. In the trial court appellant objected to such distribution on the ground that a provision of the second codicil, which was executed within thirty days of the death of the testator, was invalid under section 1313 of the Civil Code (now section 41 of the Probate Code). The provision of the codicil claimed to be invalid reads as follows:

“In ¿ddition to the bequest and devise of one-fourth of the rest and residue of my estate in paragraph 'Twelfth' of my said will and testament made to the person who at my death shall be the pastor in charge of St. Patrick’s Roman Catholic Church at San Jose, California, I give, devise and bequeath unto such person, one-half of the rest and residue of my estate of every kind and character and wheresoever situated to be used by such person to procure masses to be said for the repose of my soul.”

Under this provision the specified portion of the residue of the estate, amounting in value to- about $5,000, was…