No. 6566--Aug. 22, 1877


DEVISE OR BEQUEST TO “CHARITABLE OR BENEVOLENT SOCIETY.”--The Boys’ Roman Catholic Orphan Asylum at San Rafael is a

charitable and benevolent society, under Sec. 1313, C. C., and is, as such, entitled to take a bequest.

Construing sections, C. C., 1275, 1313.


D. Rogers, for executor.


J. M. Burnett, for Asylum.


G. W. Tyler and Mogan & Sullivan, for other legatees.


The will is dated June 10, 1875, and disposes of the estate as follows:


To the Boy’s Roman Catholic Orphan Asylum at San Rafael, Marin County, California, One-fourth;

            To Michael Tobin and Alice Tobin, father and mother of testator, one-fourth;

            To Ellen A. Fitzgerald all the rest and remainder, being the one-half.


            By the COURT:  It is claimed on behalf of all the other legatees that the legacy to the Orphan Asylum is void under Sec. 1275, C. C.; on behalf of Fitzgerald that she will take that share as residuary legatee; and on behalf of the father that he will take the share as heir, and that Fitzgerald’s interest is limited by the will to the one-half of the estate, as named in the will.

The effect of Sec. 1313, C. C., is to qualify the terms of Sec. 1275; and charitable and benevolent societies and corporations may take under a will.  The “Boy’ Roman Catholic Orphan Asylum at San Rafael,” being a charitable and benevolent society, the bequest to it is good, and the estate should be distributed according to the terms of the will.




Transcribed by Pat Seabolt.

© 2007 Pat Seabolt.