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statute (Civ. Code, sec. 502) enters into the contract, and that its provisions must be taken into account in construing the contract. The city in granting a street railway franchise is but an agency of the state, and if there were any conflict between the ordinance containing the grant and the general laws of the state, the latter would govern. In this case, however, there is no conflict. The ordinance provides that in case of a failure to complete the work within the time limited the franchise shall be forfeited, but if this provision is not selfexecuting, it is not in conflict with a provision of the statute which is self-executing, and so the only question is as to the proper construction of these words of section 502 of the Civil Code: “A failure to comply with either of the foregoing provisions of this section, or with either of the provisions of the ordinance granting said right of way, works a forfeiture of the right of way and also of the franchise," etc.
245 We are of the opinion that the words italicized make the statute self-executing. A judgment declaring and enforcing a forfeiture does nothing more than work a forfeiture, and when a breach of condition works a forfeiture there is no office for a judgment to perform, except perhaps to supply conclusive evidence of the fact-evidence which may in certain contingencies be useful, though not for all purposes essential.
Our conclusion upon this point is fully supported by the cases of Oakland R. Co. v. Oakland B. B. & F. V. Co., 45 Cal. 365, 13 Am. Rep. 181, and Upham v. Hosking, 62 Cal. 250. In neither case was the language providing for a forfeiture any stronger or more explicit than the language of section 502 of the Civil Code, but in both it was held that the forfeiture was complete upon failure to comply with the conditions of the respective grants. Those decisions have been frequently cited and never overruled by this court, though questioned in other jurisdictions.
Borland v. Lewis, 43 Cal. 569, is another case in which the provision for a forfeiture was held to be self-executing, but there the language of the statute was different and stronger than that in question here. A large number of decisions in other jurisdictions are cited by the appellant, many of which support its contention and many of an opposite tendency are cited by respondent. We do not consider it necessary to review these cases, since our own decisions must control. The decision in People v. Los Angeles Electric Ry. Co., 91 Cal. 338, 27 Pac. 673, so far as it touches the question we are considering, implies that if the time allowed for construction had
expired before the commencement of the action, the franchise would have been forfeited, but the question whether the provision of section 502 of the Code of Civil Procedure, for forfeiture of the franchise for failure to complete the work in time, is self-executing would not have been involved.
In Santa Rosa etc. Co. v. Central Co., 112 Cal. 436, 44 Pac. 733, the question was involved, and the final affirmance of the judgment of the superior court by reason of the equal division of the qualified justices of this court was in effect a decision that the forfeiture in such cases is self-executing.
It follows from this conclusion that the plaintiff having forfeited its right to use or occupy the street which it had left vacant for four years after the expiration of the time limited 246 for the completion of its road, had no more right to lay its track there than one who had never been granted a right of way, and the city was clearly within its right in preventing the trespass.
Some cases are cited in support of the contention that even if the right of way was forfeited ipso facto on the 12th of May, 1889, the city could not lawfully oust plaintiff from the possession of the street by force. But those cases are not in point. The plaintiff was not in possession. It was attempting unlawfully to take possession, and the city was merely resisting an unlawful entry upon a street which its duty to the public required it to keep clear of unauthorized obstructions.
The judgment of the superior court is affirmed.
Shaw, J., McFarland, J., Sloss J., Angellotti, J., and Lorigan, J., concurred.
The Charter of a Corporation has been Held not to Expire by reason of an omission or commission of acts on the part of the company for declaring a forfeiture, but such franchises continue in full force until the penalty of forfeiture is claimed by the state, by and through legal proceedings by which the cause of forfeiture is legally declared: Higgins v. Downward, 8 Houst. 227, 40 Am. St. Rep. 141.
ESTATE OF LENNON.
(152 Cal. 327, 92 Pac. 870.] WILLS, Revocation of Probate of, What is not a Ground for. That a will is invalid and contrary to the laws of the state relating to charitable uses is not a ground for revocation of its probate. (p. 59.)
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 the general public, indefinite as to names and numbers. (pp. 59, 60.)
WILLS—Bequests for Masses.--A bequest to the bishop of a Catholic church of a specific sum “to have the same amount of masses celebrated as soon as possible” for the soul of the testator is not a bequest for a charitable use, and is valid. It does not fall within the provisions of the statute restricting devises and bequests for charitable uses. (p. 60.)
WILLS—Bequests for Superstitious Uses.-Bequests are not Prohibited as Superstitious if they are mere observances of any ceremonial, the efficacy of which is recognized by the church of which the donor is a member. "No religious observances can be deemed as a matter of law superstitious. (p. 60.)
0. V. Eaton, E. T. Maples and F. D. McClure, for the appellants.
II. C. Dillon and J. Wiseman Macdonald, for the respondent.
328 HENSHAW, J. The will of the deceased having been admitted to probate, appellants, as next of kin, filed a petition asking for the revocation of the probate upon three grounds: “First, that said alleged last will and testament is invalid and contrary to the laws of the state of California as made and provided by section 1313 of the Civil Code of said state relating to charitable uses; second, that the decedent was unduly influenced in the making of the will; third, that the will was not entirely written, dated and signed by the hand of the testator.' The second and third grounds were not supported by evidence, and seem to be abandoned upon this appeal. The first is not a ground for revocation of the probate of a will, since, if any will falls under the inhibition of section 1313 of the Civil Code, that section itself provides for the disposition of the assets of the estate which must follow: Estate of Willey, 128 Cal. 1, 60 Pac. 471.
Appellants undertake to bring to this court two appeals, one apparently from the decree settling the final account and 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 beqnest.
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 influence 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 supersti
"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 recognized 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