Estate of Gay

Martin Francis Quinn, the distributee of the residue of the estate, appeals from the decree of partial distribution to Lizzie Gay, who was one of several legatees of the will of deceased. The second clause of the will reads as follows:—

The question here presented is, Can a testator create a permanent fund in trust, the income of which is to be devoted for all time to the care of his place of interment?

Section 9 of article XX of the constitution provides as follows: “No perpetuities shall be allowed except for eleemosynary purposes.” Trusts for perpetual charitable uses are not in conflict with this section. (Estate of Hinckley, 58 Cal. 457 .) The term “ eleemosynary" includes all charitable purposes. (People v. Cogswell, 113 Cal,, 130.) The question then is, Is the trust attempted to he created by the testatrix a charitable use? We think it is not.

Respondents contend that the bequest is to Lizzie Gay alone, without words of inheritance or succession; that the trust dies with her, and hence there is no illegal suspension of the power of alienation. The money which is to be invested is, by the express provisions of the will, “to constitute a permanent* fund, the income whereof…