Battaglia

I dissent. A statute is unconstitutionally discriminatory when it permits one testator to leave property to a social group (such as an unincorporated fraternal association) and denies another the power to bequeath property to some other kind of association; such a statute unconstitutionally discriminates not only among testators, but also among the affected organizations and their members.

Probate Code section 27 permits testamentary dispositions to “unincorporated religious, benevolent or fraternal societies or associations or lodges or branches thereof . . . .” Corporations Code section 21200 permits “[a]ny unincorporated benevolent or fraternal society or association, and every lodge or branch of any such society or association, and any labor organization” to take by will.

It is difficult to accept the proposition, advanced in Estate of Holtermann, 206 Cal.App.2d 460, 466-469 [ 23 Cal.Rptr. 685 ], that these statutes bespeak a legislative intent to permit all unincorporated associations to take by will. That appraisal of legislative intent transforms the specific statutory descriptions into surplusage. The language of these statutes simply does not justify that appraisal. I…

In proceedings instituted by petition of the executor of the above captioned estate advice of the probate court was sought to determine heirship as between the Socialist Labor Party of California, an unincorporated association, and the state itself. The former, under decedent’s will in probate, is the sole primary legatee, but the State of California becomes the sole beneficiary if the Socialist Labor Party is unable to take the estate “for any reason, legal or otherwise.” The probate court, by its findings and judgment, held in favor of the state; the Socialist Labor Party appeals.

The Facts

Mrs. Jean Steiner was the only witness. She was called by the Socialist Labor Party (which we will call “the party.”) She is its state secretary. She testified its primary purpose was to advance the cause of socialism. The party had nominated (unsuccessful) candidates for public office. The party reconciled to failure deemed education of the people and stimulation *481 of public discussion of various social problems to be adequate reward for its activities. These activities included the publication of “The Weekly People” and distribution of pamphlets—all carried on at a loss. We…