ordering distribution; the other from the judgment of the court following their petition to have the will of the deceased set aside upon the grounds above stated. The record upon these appeals is fragmentary, uncertain and incomplete. No evidence is presented against the rulings and decision of the court. Yet the record does contain the statement that proofs were taken upon the account and petition for distribution and submitted to the court, and that oral and documentary 329 evidence was introduced which the court considered, a trial by jury was expressly waived and the matter was heard and tried before the court without a jury. The statement of the appellants "that the will is contrary to the laws of the state of California as made and provided by section 1313, Civil Code," is not the allegation of any fact, but is merely a legal conclusion which the pleader draws, a conclusion which, even if sound, as has been said, does not call for the revocation of the probated instrument. Section 1313 restricts charitable devises and bequests, and provides that if such bequests are found in a will made within thirty days of the testator's death they are void. If in a will executed more than thirty days before the testator's death, they are valid to the value of onethird of the testator's estate. If he has left more than onethird of his estate to such charities, a pro rata reduction from them all shall be made to the value of one-third of his estate. But notwithstanding the condition of the record, we proceed. to consider the proposition which in the transcript and in the appellants' brief is declared to be "the nub of the case, namely, whether a bequest to Bishop Conaty of three thousand five hundred dollars, "to have the same amount of masses celebrated as soon as possible for my soul," is a charitable bequest.

It will be noticed that the limitation and restriction imposed by section 1313 of the Civil Code is upon charitable uses and trusts. The reason for the law has often been expounded. It is that a man's fears or superstition, or his deathbed hope of purchasing a blissful immortality, shall not be allowed to inquence the disposition which he may thus make of his property, to the injury of his heirs. The law, therefore, limits the time within which such a testamentary disposition may be made, and also limits the value and amount of such disposition. But the only inhibition of the section is that such devises or bequests shall not be made to charity, or in trust for charitable and benevolent purposes. Charity and a charitable use have often been defined by this and other courts. A charitable trust is a gift for the benefit of persons, either

by bringing their hearts and minds under the influence of education or religion, by relieving their bodies of disease, suffering or constraint, by assisting to establish them for life, by erecting or maintaining public buildings, or in other ways lessening the burdens or making better the condition of the general public, or some class of 330 the general public, indefinite as to names and numbers. In short, it is a gift to a general public use: Eaton on Equity, sec. 181; Perry on Trusts, sec. 697. The bequest here lacks every element of a bequest for charity or charitable use. It is not for the benefit of the public or of any class or division of the public. It is entirely lacking in the element of continuance and perpetuity which characterize a charitable use. It is a bequest, not for the benefit of the bishop, but for the benefit alone of the testator, and the direction is that the money shall be expended as expeditiously as possible in the saying of masses for the testator's soul. Such a bequest, as has been said, is lacking in every attribute which characterizes a charity. In England, masses for the dead are called "a superstitious use," and are forbidden by statute: 1 Edward VI, c. 14; In re Blundell's Trust, 30 Beav. 360. But in this state, and in the states of this Union generally, there is no statute designating such bequests superstitious uses, and such bequests are not prohibited as superstitious if they are for the observance of any ceremonial, the efficiency of which is recog nized by the church of which the donor is a member. "No religious observances can be deemed as matter of law superstitious': Holland v. Alcock, 108 N. Y. 312, 2 Am. St. Rep. 420, 16 N. E. 305. In this state there is no law prohibiting such a bequest, and no law which declares such a bequest to be in its nature a superstitious use, and as clearly it is not a charitable use, it does not come within the inhibition of section 1313 of the Civil Code, although the amount should exceed one-third of the value of the testator's estate.

If authority were needed in support of a proposition so plain, it may be found in abundance. Thus, in the case of Sherman v. Baker, 20 R. I. 446, 40 Atl. 11, 40 L. R. A. 717, Baker by his will gave one hundred dollars to the parish priest of St. Patrick's church to say masses for the repose of his soul, and one hundred dollars, the income of which was to be used in ornamenting and keeping in proper repair his burial lot. The court said: "This will presents an example both of a gift in perpetuity for a private trust, that is, for the care of the testator's burial lot, and an outright gift for masses. The former is invalid (citing cases); the latter, the

gift for masses, is valid as one which takes effect at once like any personal bequest for a legal object": See, also, Harrison 331 v. Brophy, 59 Kan. 7, 51 Pac. 883, 40 L. R. A. 721; In re Howard's Estate, 25 N. Y. Supp. 1111, 5 Misc. Rep. 295; Moran v. Moran, 104 Iowa, 216, 65 Am. St. Rep. 443, 73 N. W. 617, 39 L. R. A. 204; In re Zimmerman, 22 Misc. Rep. 411, 50 N. Y. Supp. 395; Hoeffer v. Clogan, 171 Ill. 462, 63 Am. St. Rep. 241, 49 N. E. 527, 40 L. R. A. 730

The judgment and orders appealed from are therefore affirmed.

Lorigan, J., Angellotti, J., Shaw, J., and McFarland, J., concurred.

Bequests for Masses are discussed in the note to McHugh v. McCole, 65 Am. St. Rep. 118. A bequest to a Catholic priest, who is the pastor of a particular church, "that masses may be said for me," is not a charity, but the bequest is, nevertheless, valid, and creates a valid private trust, if the priest accepts the money: Moran v. Moran, 104 Iowa, 216, 65 Am. St. Rep. 443.

Charitable Uses and Trusts are discussed in the note to Hoeffer v. Clgan, 63 Am. St. Rep. 248. On the certainty and unity required in ebaritable trusts, see the note to Fifield v. Van Wyck, 64 Am. St. Rep. 756.

BURDELL v. GRANDI.

[152 Cal. 376, 92 Pac. 1022.] DEEDS, Conditions in Against the Sale dition in a conveyance that intoxicating liquors the premises conveyed is lawful and enforceable.

of Liquors.-A conshall not be sold on (pp. 63, 64.)

DEEDS, Conditions in Against Sale of Intoxicating Liquors Intended Merely to Create a Monopoly.-If a person subdivides his lands into town lots, which he sells, inserting a condition in each dred against selling intoxicating liquors on the premises conveyed, and providing that the estate granted shall be forfeited on a breach of the condition, and the object of the grantor is merely to reserve to himself, or in favor of property not sold by him, a monopoly of the sale of such liquors, the condition is void as against public policy, and its breach does not work a forfeiture. (p. 67.)

J. R. Brandon, for the appellant.

E. B. Martinelli, for the respondents.

377 LORIGAN, J. This is an action of ejectment wherein plaintiff seeks to recover possession of a lot of land in the town of Point Reyes station, in Marin county, for an alleged

breach of a condition subsequent imposed in a deed made by plaintiff to the predecessor in title of the defendant.

The court found that in June, 1883, plaintiff was the owner of a tract of land in Marin county, upon which the town of Point Reyes station now stands, and that upon said date, for the purpose of establishing and building up said town, he laid out said tract into blocks and lots and made sales of the latter to individuals; that all deeds executed by plaintiff of lots therein contained the following clause: "It is hereby expressly understood and agreed between the parties hereto and their respective heirs, executors, administrators and assigns, and all claiming or to claim under them, that this conveyance is made and received solely and expressly on the condition that no saloon, bar-room, liquor store, beer-hall or any place where intoxicating liquors or beer shall be sold at retail, shall be opened, established, allowed or permitted to exist on the said premises conveyed or any part thereof; nor shall any liquor, beer, wine or intoxicating drink be sold, bartered or exchanged thereon at retail without the express permission in writing of the party of the first part, his heirs, executors or administrators, and that upon the breach of said condition the estate hereby granted shall immediately cease, determine and be void and revert to the grantor, his heirs or assigns, together with all improvements which may have been erected on the premises"; that said condition was not inserted in said deeds to said lots pursuant to any general scheme or plan of building up said town, or for the benefit of the lands therein, or for the benefit of persons who purchased lots therein, or as an inducement for persons to purchase the same; that in July, 1883, plaintiff, in consideration of the construction and erection of a store by one A. P. Whitney on a lot in said town (being the same premises involved in this action) made a grant of said lot to him, the deed containing the condition and provision heretofore referred to; that said Whitney constructed 378 and erected a store on the said premises, and thereafter by sundry mesne conveyances the title to said lot passed from said Whitney to the defendant, S. Grandi, who, in 1888, conveyed a portion thereof to his codefendant, Q. Codoni; that in March, 1902, the defendant Grandi, without the consent of plaintiff, opened and established a saloon on the portion of the lot retained by him for the sale of intoxicating liquors, and has since continued to conduct said saloon thereon and to sell intoxicating liquors therein, without the consent of plaintiff; that no saloon exists or has existed on the portion of the lot sold by said Grandi to said

Codoni, nor is the latter at all interested in the saloon business carried on by the former; that for many years immediately preceding the commencement of this action plaintiff was the owner of a hotel situated on a lot owned by him in said town of Point Reyes station as originally platted and laid out by him, and for many years the plaintiff leased said hotel building to divers tenants successively, who, with the consent and permission of plaintiff, opened and maintained. continuously a saloon and bar-room in said hotel where intoxicating liquors were sold at retail; that at all times from the said nineteenth day of July, 1883, while intoxicating liquors were sold at said hotel as aforesaid, plaintiff refused. to permit any other persons who had bought lots from him in said town to open or establish saloons or bar-rooms thereon, where intoxicating liquors might be sold at retail; that during all said time plaintiff reserved to his several tenants the exclusive right and privilege of opening and maintaining a saloon and bar-room where intoxicating liquors were sold at retail at said hotel, and reserved for the said tenants the exclusive right to sell intoxicating liquors at said hotel, and during all said. time the exclusive sale of intoxicating liquors in said town was reserved to be carried on at said hotel; that it was the intent and purpose of the plaintiff in inserting said clause in the conveyance from himself to Whitney, and in all other conveyances made by him to lots in said town of Point Reyes station, to thereby reserve to himself the exclusive control of the sale of intoxicating liquors in said town.

As a conclusion of law from said findings the court decided that the purpose and effect of said condition, as set forth in the deed from plaintiff to Whitney, was to create a monopoly in the sale of intoxicating liquors in the town of Point Reyes 379 station in the plaintiff, and in consequence thereof said condition was and is against public policy and void, and judgment was accordingly entered for defendants.

The plaintiff appeals from this judgment, and the question of its validity is presented here upon the judgment-roll alone. There is no bill of exceptions or any statement accompanying the appeal, the sole point urged being that the findings do not warrant the judgment. Under these circumstances it must be assumed that the evidence in the case was amply sufficient to sustain the findings as made by the court.

It is insisted by appellant that a condition inserted in a deed that intoxicating liquors shall not be sold on the conveyed premises, and providing that for a breach thereof the estate granted shall be forfeited is entirely lawful, and that